Immigration Lawyers Toolbox® Magazine, Issue 03 (Summer 2021) Special O-1A Edition

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President Staff

John Q. Khosravi, Esq.

Caela Alyssa Dela Cruz Katrina Sophia Jamora Wilfredo Daoas Dan Stanley Sabong

Contributing Writers

Karin Wolman, Esq. Enrique Serna, Esq. Ron Matten, Esq. Arthur Deucher Figueiredo, Esq. Ian Hawes Keith Lee, Esq. Marco Scanu Monica Roisman, Esq. Jeremy Peskin Fiona McEntee, Esq. Raymond McEntee, Esq. Paul Monson Joseph Tsang, Esq. Mitch Wexler, Esq. Sarah Hall, Esq. Kurt Reuss Sophie Alcorn, Esq. Rafael Pichardo, Esq. Benjamin Lau, Esq. Zain Abidi, Esq. Patrick Findaro Andrew Wilson, Esq. Taymoor Pilhevar, Esq. Beata Leja, Esq. Ben Arterburn Brian Green, Esq. Vanessa Ganguin, Esq. Daniel Lee, Esq.

If you would like to be considered for submitting an article, please contact: Info@ImmigrationLawyersToolbox.com

Disclaimer: None of the information

provided here is intended as individual legal guidance.The laws change frequently and some of the information may become outdated. Please consult with an attorney in private to discuss an individual case.

Views expressed belong solely to the authors. Also, the publication of sponsored content does not serve as an endorsement.

© Immigration Lawyers Toolbox® All Rights Reserved

ImmigrationLawyersToolbox.com

Publisher’s

Note

Welcome

to the 1st Special Edition issue of the Immigration Lawyers Toolbox® Magazine. We will continue to publish regular editions that cover a wide range of immigration law topics. But I wanted this first focused issue to discuss a fast-growing category: the O-1A. With the limited numbers of H-1Bs, the processing headaches of L-1s, and the country limitations of the E-2, this category is becoming a go-to category for work flexibility across different fields.

Over a dozen colleagues have contributed articles to provide tips and guidance on narrowing down the field of expertise, petitioner/agent options, the criteria, different fields/job types, and even global migration options. I hope this serves you well.

John Khosravi, Esq. President of Immigration Lawyers Toolbox®

18 24 30 34 42 50 58 62 68 74 78 84 88 90 94

by Karin Wolman, Esq.

O-1a & O-1b: Extraordinarily Similar but Different

by Ron Matten, Esq. & Arthur Deucher Figueiredo, Esq.

Tips for Properly Framing the O-1a Field of Expertise

by Nadine Heitz, Esq.

O-1 Hybrid Cases

by Monica Roisman, Esq.

Petitioner Options for 0-1 Visa Appicants

by Fiona McEntee, Esq. & Raymond McEntee, Esq.

The ‘‘Self Petition’’ O-1 Visa

by Joseph Tsang, Esq.

Decrypting the O-1 Visa for Executives & Business Owners

by Mitch Wexler. Esq. & Sarah Hall, Esq.

O-1as for Startup Founders

by Sophie Alcorn, Esq.

O-1a Visas in Gaming

by Benjamin Lau, Esq. & Zain Zabidi, Esq.

Original Contributions of Major Significance

by Andrew Wilson, Esq.

O-1a Extensions

by Taymoor Pilehvar, Esq.

212(D)(3) Nonimmigrant Waiver for Your O-1 Clients

by Beata Leja, Esq.

O-1A Visa Processing

by Ben Arterburn

APA Lawsuits Challenging O-1 Denials

by Brian Green, Esq.

What are the Key UK Visa Routes for Global Talent?

by Vanessa Ganguin, Esq.

Canadian Work Permit Options for Performing Arts

by Daniel Lee. Esq.

CONTENTS

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TABLE O F

My History with the O and P Regulations

Immigration Lawyers Toolbox Magazine

MY HISTORY OF THE O & P REGULATIONS

by KARIN WOLMAN, Esq.

T

Karin Wolman, Esq.

Karin@KWVisaLaw.com

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his is a short history of how I got acquainted with the O & P visa categories, around the time they were first implemented. I had graduated from law school in 1990 with an all-public-sector resume, in the middle of a pretty big recession.

I came back to New York, and I was staying with a friend in Williamsburg, Brooklyn, who was working at BAM - the Brooklyn Academy of Music, the nation’s oldest performing arts center. She told me they were short-handed and it was easy to find temporary jobs there, so I started temping my way around the building. I worked at the Brooklyn Philharmonic Orchestra, and in the Development office, and in Special Events, and the President’s office. I forget how many departments I temped in, but sooner or later, somebody offered me a full-time job with benefits in the General Manager’s office, which at the time seemed like a really good idea.

I stayed, and I ended up working as an administrative assistant at BAM for four years.

I did all kinds of work there, some of it clerical and reception, some contract administration, some company management & hospitality, some legal or quasi-legal – it was a hodge-podge.

I happened to be working there when the O & P Visas were first introduced at the end of 1991, when BAM was |co-producing and presenting a huge

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offsite production called “Les Atrides,” located at the Brooklyn Armory, with a very large, distinguished French theater company – Ariane Mnouchkine’s Théatre du Soleil.

This was BAM’s first experience as a performing arts presenter dealing with these new visa categories, when the O & P regulations had just recently gone into effect. To guide us through that process, they had hired a fancy Washington DC immigration lawyer who had been one of the drafters who helped craft those regulations. His name was Jonathan Ginsburg.

Now, since I became a practicing immigration lawyer, Jonathan and I have served on national committees together.

I inherited his O & P visa survey article, which I updated annually for about five years, and which has since grown to something bigger than one person can update every year. We have a running joke that he taught me everything I know, which is not quite the truth, but structurally, Jonathan taught me how to think about visa petitions, and he really gave me the foundation of what the O & P categories were about.

Even though I was not working as an attorney, I was doing legal work, among other stuff, including stagehand payroll it was a really a wacky amalgam of jobs.

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But I had a good time, and I learned a lot.

After three years of doing Os and Ps for the Brooklyn Academy of Music, for all different types of theatre and dance and musical artists, and some indefinable performance art, I became an expert in these brand new visa categories that were unfamiliar to plenty of experienced practicing immigration attorneys.

So I had a marketable skill.

What attorneys and performing arts presenters had been using before the advent of O & P visas was the old H-1B ”distinguished merit and ability” visa, which is the only option there was, and like the remaining H-1B category for models, it was a very loose and bad fit; the H-1B regulations just don’t accommodate the way so many people and industries work.

This was in the era many decades before the Neufeld memo [which narrowly redefined the employeremployee relationship], but the H-1B category is tied to the idea that you have one job at one employer and you have a fixed salary, and there’s employeremployee relationship with salary and benefits, and you get a W-2.

In the arts and entertainment, and in sports, and in lots of fields where freelance, short gigs, projects and piecework are the norm, people just don’t work that way: a rigid employer-employee setting does not accurately described how most people are employed in the arts and entertainment, or in sports. The beauty of the O & P visa categories is that they were designed to accommodate a huge array of different types of work arrangements.

Even in this extraordinarily tight, unforgiving adjudications climate that we’re in now, it is still true that if somebody qualifies as a person of extraordinary ability or is doing something culturally unique, they can get paid based on ticket sales. They can get paid purely on commission. They can get paid a flat fee. They can get paid for piece

work, or hourly, or union scale. The compensation arrangements are as varied as human imagination.

And as long as you specify what the arrangement is, it’s allowed, because the O & P categories were created to accommodate the way artists and athletes really work, which is most often not in an employer-employee setting.

One of the problems that emerges, especially under COVID-19 lockdowns, is the itinerary portion of the petition: the US petitioner has to be able to confirm that the offer of paid work in the US will be available for the beneficiary to do, and in a time where all the performance venues are closed, that can be a big problem.

But even before this pandemic, the flexibility authorized in those regulations really was needed.

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Immigration Lawyers Toolbox Magazine

Sometimes they are flexible, but USCIS officers, sometimes they get really uptight and demand a kind of specificity about the itinerary that just cannot be provided, because that is not how the industry operates. A classic example from a few years ago was when USCIS generated a tsunami of Requests for Evidence right before Christmas, demanding specific schedules and itineraries for all the models coming to participate in Fashion Week in February – they almost caused NY Fashion Week to get cancelled, which would have cost the city, and the country, millions of dollars in lost revenue. Normally, models don’t have a specific schedule until about 24 hours before the event, sometimes less.

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The biggest change brought about by introduction of the O & P visa categories was the close involvement of the American labor unions, about which Tibby Blum wrote a terrific article in 1993.

The after-effects of that are all too well-known to all who practice in this area. The US labor unions now exert enormous power over the visa petition process, more than was intended. For example, the O-1 regulations on the subject of contracts explicitly permit the use of oral agreements, and unsigned contracts.

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However, because the regulations in the realm of motion picture and television O-1B petitions for aliens of extraordinary achievement require an advisory consultation with both a labor union for the type of work involved (eg SAGAFTRA, Director’s Guild, etc.) and a management organization (There’s only one: the Alliance of Motion Picture & Television Producers), and the AMPTP makes its own rules, they demanded fully executed deal memos or else AMPTP would write an unfavorable opinion letter.

Thus, the AMPTP has, as a practical matter, superimposed a signed contract requirement on all O-1s in the film, TV, & online-streaming video space, which exceeds & contradicts the regulation.

As anyone who has worked in entertainment can tell you, execution of a deal memo often happens at the very last moment, and that in turn can scotch the chances of a visa petition for a lead performer getting approved in time for the production. In both film and television and in the arts (live stage productions), both the Director’s Guild and Actor’s Equity take quite a strict reading of who they think is extraordinary enough. While

their opinions are only advisory in nature, it is more difficult to get a petition for a performer approved when the labor union says, “We don’t think this person is extraordinary enough.”

Also, some parts of the regulations were finalized in haste, and while some corrections were issued (59 Fed. Reg. 41818, Aug. 15, 1994, followed by 59 Fed. Reg. 55910, Nov. 9, 1994) getting rid of rules that were ultra vires [not authorized by the underlying statute], some other rules were allowed to remain, although they were equally unauthorized by the law. One classic example of that is that the 1994 regulations got rid of the requirement that the employment offered to an O-1 had to require the services of an alien of extraordinary ability, since thenINS acknowledged the statute did not support such a requirement, but they failed to get rid of an equally ultra vires requirement that a P-1 athlete must be coming to the US to compete in a sporting event that requires all participating athletes to be “internationally recognized.” It’s unlawful and they are still implementing this requirement.

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About the Author Karin Wolman is Principal of the Law Office of Karin Wolman, PLLC, serving businesses of all sizes, nonprofit organizations and individuals, across industries from healthcare and the sciences, academia, finance and technology, to the performing arts and entertainment, fine and graphic arts and new media, culinary arts, fashion and beauty, architecture and design. Ms. Wolman is a frequent speaker at local and national conferences on topics in immigration law ranging

from aliens of extraordinary ability to naturalization, for organizations including the American Immigration Lawyers Association, the Sports Immigration Law Conference, the Practising Law Institute, New Jersey Institute of Continuing Legal Education, and New York State Bar Association.

Ms. Wolman has been recognized among the top 5% of attorneys in the New York Metro area by SuperLawyers, and has a 10/10 “Superb” rating on Avvo. A graduate

Click on the Image to Watch the Full interview with Karin

of Columbia University and UCLA School of Law, she worked at the Brooklyn Academy of Music when the O & P visa categories were first introduced. She has served since 2002 as moderator of the AILA InfoNet forum on O & P visas. She served locally on the NY District Director Liaison committee and nationally on the Vermont Service Center liaison committee when the government was still speaking to us.

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Colleague Updates Condolences on the Passing of Professor Christopher Lasch, Professor at the University of Denver Sturm, College of Law.

Congratulations to Vickie Neilson, winner of the Legal Services Award by the National LGBT Bar Association.

Congratulations to Lucas Aisenberg,

in his new position as a Clinical Supervising Attorney in the Immigration Clinic at the University of Houston Law Center

March for Mayra: Beat Cancer!

Go Fund Me Page: Click Here

Agency Updates: USCIS Form I-131 and Mailing Location

USCIS Form I-485 (and derivative forms)

New USCIS Asylum Office opened in Tampa, Florida on August 2, 2021

USCIS Extended Flexibilities to Certain Applicants Filing Form I-765 for OPT USCIS Extended I-693 Expiration Time USCIS Extends Flexibility for Responding to Agency Requests (through September, 2021) USCIS Expedite Criteria updated

Trump era USCIS auto-denial for missing documents undone USCIS C9 EADs to be issued for 2-year periods

USCIS Vermont Service Center Address Change

USCIS closed its Biometrics Processing Unit (BPU) in Alexandria, VA. Biometrics appointments may be rescheduled by calling the USCIS Contact Center.

USCIS Announces Lockbox Filing Flexibilities for some cases incorrectly rejected due to Lockbox delays in accepting payments

USCIS Naturalization Policy Manual False Claim to Citizenship section updated

DOS: Extension of validity for National Interest Exceptions (NIEs) for Travelers from China, Iran, Brazil, South Africa, the Schengen Area, the United Kingdom, Ireland, and India

News PwC Taps Morgan Stanley to Sell ‘Global Mobility’ Division: NYT

State Department Attorney Joins BAL, Adding More High-Caliber Immigration Talent to Government Strategies Team Fragomen Bets On Biz Travel With Nomadic Acquisition

Dr. Rand Paul and Senator Richard Blumenthal Introduce the Temporary Family Visitation Act

Settlement reached for rejections of Asylum cases for having blanks on the form Civil Immigration Suits Continue to Rise

Jobs Business Immigration Associate, Scott Legal, P.C.

Business Immigration Associate, Green & Spiegel Trial Attorney, DOJ OIL

Litigation Staff Attorney, Asylum Seeker Advocacy Project Patricia Hassett Legal Fellow, Syracuse University (TRAC)

Immigration Lawyers Toolbox Magazine

DELIVERING THE AMERICAN DREAM M

Enrique G. Serna, Esq.

Enrique@ ImmigrationTheRightWay.com

by ENRIQUE G. SERNA, ESQ. CEO - Immigration the Right Way

ay 23, 1985, Senate Bill 1200 is introduced in the US Senate by Republican Senator Alan Simpson. September 19, 1985, the Immigration Reform and Control Act of 1986 was passed on the Senate floor by a combined 2/3 majority supported by both Republicans and Democrats. October 9, 1986, The US House of Representatives adopted the bill and it passed the house on a bi-partisan basis 230 to 66. November 6, 1986, President Ronald Reagan signed the bill into law. The Immigration Reform and Control Act altered immigration law by legalizing most undocumented (out of status) immigrants who arrived in the country prior to January 1982. In essence it forgave the applicant’s illegal status in the United States. Fact: Most legalized immigrants became wage earners and tax paying contributors to the booming 80’s-90’s economy.

More than 3 million undocumented immigrants applied for legalization during the late 80’s and early 90’s. For the most part, aliens who had been unlawfully residing in the US since 1982 were legalized, in addition to some agricultural workers that were engaged in seasonal work. Almost 2.5 million people were ultimately approved for permanent residence and became productive United States Citizens.

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This is a Sponsored Article

I was one of those that benefited from the Immigration Reform and Control Act, a/k/a, The Simpson Mazzoli Act. I was born in Monterrey, Mexico, to a family that operated radio stations. My grandfather, Enrique C. Serna and his brother Clemente Serna were one of the pioneers that brought radio to Northern Mexico (Monterrey) in the late 1930s.

After 30 years of successful operations of their then radio empire, my grandfather fell ill and succumbed to cancer and died shortly thereafter leaving his radio empire in peril. I was in the third grade when my father came into our home one evening and told my family that we were moving to the Texas/Mexico border to Matamoros, Tamaulipas, as my father had managed to salvage 3 of the group’s radio stations and needed to move in order to operate them.

As I arrived to the Texas Border, my parents attempted to enroll me at St. Mary’s school in Brownsville, Texas for the fourth grade, however, my English was not proficient, and I was told I would have to be placed in the first grade. I chose not to do so and continued my elementary education on the Mexican side of the border at Colegio La Salle in Matamoros, Tamaulipas. During our stay in Matamoros our business began to flourish. My father sought a better life

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for our family and moved us to the US side to Brownsville, Texas.

As I was graduating high school, almost upon entry to college, the Immigration Reform and Control Act passed. At that time, my father had met a lawyer by the name of Linda Yanez, a well-known immigration attorney in South Texas. Linda recommended us at the time to seek the American dream and recommended us to apply for Residency through the newly enacted Amnesty law. I became a US temporary resident in 1987 and in late 1988 applied and became a US citizen. I graduated from the University of Texas Pan American with a degree in marketing in 1990 and subsequently enrolled at the Thurgood Marshall School of Law, graduating in 1993, and passed the Texas Bar in May of 1994. I have been a Texas trial lawyer for 26 years and I have been living the American dream. I have a beautiful family, I am married to my best friend, and my mission is to deliver the same dream I’ve lived to others that are here illegally, out of status, or simply in need of immigration help and want to pursue their own American dream.

January 12, 2021, my wife, Victoria, and I started Immigration The Right Way (Migracion Al Minuto USA LLC).

THE TIME FOR IMMIGRATION REFORM IS NOW At Immigration The Right Way we estimate that there are over 20 million people out of status living in the United States. Immigration The Right Way was created with the intent of removing the hurdles between those in need for immigration services and matching them with competent lawyers across the country. The great majority of people that are out of status and in the United States operate in the shadows of fear every single day.

For the most part, it is a daunting task to know who to trust with your precious immigration case or immigration needs. Unfortunately, misinformation, fraudsters, opportunists, and bad actors instill more fear and exorbitant costs, rather than lending a helping hand to immigrants. The immigration marketplace in the US is somewhat contaminated with fallacies, false prophets, bad actors, and the huge unknown as to who can give an applicant certainty that they will not be taken advantage of.

Immigration The Right Way was created to tackle those challenges.

Immigration The Right Way is a first in kind corporation that believes in honesty, transparency, client comfort, and brings the plethora of immigration professionals with

vast knowledge into one common marketplace to be paired up with willing and paying clients that seek to live the American dream the right way.

Our robust software platform replaces the difficult task of choosing the right lawyer and schedule the initial and pivotal attorney/client interview.

The constraints of limited attorney time, difficult and busy timeliness, and overcommitted schedules make it extremely hard for clients to comfortably consult or seek immigration solutions to their immigration situation. Immigration The Right Way has joined forces with hundreds of competent immigration professionals, each in their area of specialty to bring and afford competitive pricing to those clients in need of immigration services. Now the client, from the comfort of their home, can go through our simple to use online interview, schedule a free phone/video consultation, upload their documents, pay for lawyerassisted immigration services by debit, credit card, or cash, all from the comfort of their own home. Immigration services and immigration fees are an expensive commodity.

Immigration The Right Way has partnered with ByD Cash to provide immigration ILT Magazine

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Immigration Lawyers Toolbox Magazine WE STRIVE TO CREATE A TRUSTWORTHY MARKETPLACE FOR CLIENTS AND LAWYERS

loans for those that cannot pay their lawyers nor the United States government fee’s upfront. For the immigration professional that has joined our digital revolution, they can now concentrate on being effective in preparing, submitting, and adjudicating their client’s files. Immigration The Right Way will perform all the immigration professional’s marketing and will provide high-quality, screened leads at the fastest speed in the industry. Our goal is to make it easier for immigrants to access the best skilled lawyers at the most affordable prices for the successful pursuit of their American dream.

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This is a Sponsored Article

We strongly believe that over time and as we grow, our digital marketplace will become the TOGO DESTINATION for immigration needs. Specifically addressing the O-1(a) Visa category “individuals with an extraordinary ability in the sciences, education, business, athletics” Immigration The Right Way has already screened and processed a few of these high qualifying clients.

To all of the subscribers of Immigration Toolbox Magazine, the time is right here, right now, and I hereby invite you to contact me at enrique@immigrationtherightway. com if you are interested in enhancing your practice with quality leads delivered in your field of expertise. Caveat to my fellow successful practitioners; We

strive to create the largest digital immigration marketplace with competitive pricing and millions funneling through our servers.

Therefore, for all of those interested, we will ask for you to give us your most competitive prices in your best area of expertise.

It is time to deliver the American dream to millions from one that came in the right way and has been living it the last 35 years. Please urge your congressional leaders to pass a new amnesty bill that will legalize over 20 million out of status individuals that contribute daily to our booming economy but cannot enjoy their life, liberty, and pursuit of happiness. The American dream is meant to be enjoyed by all people, all races, all orientations, and all genders, by all who call the United States their home. Join our revolution. Apply now by emailing me at enrique@ immigrationtherightway.com

Facebook Immigration Lawyer Groups 1

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Immigration Lawyers Toolbox Magazine

O-1A & 0-1B:

Extraordinarily Similar But Different

by RON MATTEN, Esq. & ARTHUR DEUCHER FIGUEIREDO, Esq.

Navigating the intersection of creativity

and business: a conversation about O1As & O1Bs

What do O-1A and O-1B beneficiaries have in common? Often, a lot. Recently, I sat down with my colleague, Arthur Deucher Figueiredo, to discuss the overlap between these two categories.

Ron: Let’s start with a basic question.

What is an O-1A and what is an O-1B?

Ron Matten, Esq.

Arthur: The O-1A is for an individual with extraordinary ability in science, business, education or athletics. The O-1B is for an individual with extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

Ron@Matten-Law.com

Arthur Deucher Figueiredo, Esq.

Ron: Instead of the criteria everyone always talks about, let’s talk about the foundational criteria that impacts both O-1A and O-1B. Let me just read the following part of the regulation which applies to both:

Arthur@Matten-Law.com

8 CFR 214.2(o)(2)(ii) Evidence required to accompany a petition.

Petitions for O aliens shall be accompanied by the following: (A) The evidence specified in the particular section for the classification;

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(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed;

(C) An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities; and (D) A written advisory opinion(s) from the appropriate consulting entity or entities.

Let’s first talk about contracts which applies to both. As a preliminary question, do you need to have a sponsor? And is there a difference between O-1A and O-1B?

Arthur: You have different ways to frame the petition: a single employer, multiple employers, or foreign employers. With multiple and foreign employers, you need an agent. This arrangement fits well with creative types applying for an O-1B because they would typically work with an agent even outside the immigration context. In the business context it is rare to use agents, so you might face an uphill battle at USCIS trying to utilize an agent as an O-1A petitioner.

Special Edition 2021 Ron: We’ll come back to this idea of an agent later on. One of the things that we often see with O-1As is a startup founder who owns the company. Are you saying that’s permissible?

Arthur: For a single employer, the beneficiary can own a stake in the company as long as there’s a valid employer-employee relationship, meaning there must be somebody who can fire the beneficiary.

Ron: So who would sign that petition? The beneficiary?

Arthur: We usually have another person at the company sign the petition. Another co-founder, A member of their board. Maybe even appoint the corporate lawyer who set up the company to act as a corporate secretary or a designated representative.

Ron: Tell me more about the general requirement that you have to include copies of written contracts, or if there’s not a written contract a summary of terms. In the O-1A context, this is straightforward because if there’s a company, the company would just write them a standard job offer letter. What typically happens on the O-1B side of things?

Arthur: If you have one employer it’s pretty much the same, it’s very straightforward. It gets more complicated if you have multiple employers. In that case, the agent serves as the petitioner. The agent will have to sign a summary of the terms. This document indicates that the agent is going to represent the individual. This way, you can have at least two employers. The terms will include a defined itinerary, where you can explain the events where the individual is going to participate.

Ron: So let’s say it’s Adele and she wants to come record her new album in Los Angeles, and then go on tour around the country. The agent would write a letter saying she’s going to make a record in LA in the month of May, and then provide her tour dates. Is that what the summary of terms looks like?

Arthur: Essentially. You need to be very specific and provide evidence of all the events that the artist will participate, such as contracts and deal memos. If you provide an itinerary for one year, you’re not going to be approved for three years. But that doesn’t mean that you need to work 24 hours a day, 365 days a year. You can have gaps.

For example, if you’re applying for an O-1B for touring artists, you might tour in the US for six months, for example, and then have a tour in Europe for two or three months, and then come back. You just have to have something booked in the US for when you return…

Ron: Sorry to interrupt but what would I do to get the full three years if I only have tour dates planned for the next 12 months?

Arthur: You have to prove that you have work for those three years.

One scenario that often comes up is the following. You tour for a year, and then you have some other engagement for the rest of the time.

Maybe you plan to record your next album for a few months. Or perhaps you line up a residency in Las Vegas. You can have gaps. But your itinerary needs to be very solid about the dates that you actually need to work in the US.

Ron: Back to Adele … she’s got her US tour until the end of 2021, and then she has dates in Europe in 2022. Then she’s going to have a second leg of her North American tour in 2023. She could request the full three years in that scenario?

Arthur: Interesting. I think a year outside the US might be problematic. I would say that’s too long. There’s not a black and white rule, but I would say, the absence from the US needs to be reasonable, and the rest of the itinerary after you return needs to “fit” with the overall itinerary. If the second leg of the tour is not connected to the first leg, USCIS will want you to file two different petitions.

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Ron: Let’s change the fact slightly.

After starting her European tour in 2022, Adele wants to be back in LA for the Grammy Awards. She’s 100% going to be nominated for a Grammy. So that could be part of her itinerary to attend to an award ceremony?

Arthur: Yeah, 100%. Haha.

Ron: Of course, if I’m nominated for a Grammy then I should get approved for my O-1 without anything else, right?

Arthur: Yes, if you win the Grammy.

If you’re just nominated, you probably want to show some more criteria.

Ron: Okay, so let’s say I’m a one hit wonder – “Who Let the Dogs Out?”

by Baha Men – probably before your time but trust me that song is a classic. They won a Grammy in 2001. Can Mr. Baha get his O-1 and then just go sit on the beach in Malibu drinking pina coladas for the rest of his life?

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Arthur: Haha. Terrible hypo, and yes I do remember that song. If you’re lucky enough to have this career, so yes, you probably could get an O-1. But remember that one of the critical points of the regulations is to keep this extraordinary talent in the US. They would still need to have some event in the future that’s going to happen.

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Ron: Let’s take it back to the business and science side of it. Let’s say I’m a Brazilian surfer who came as a tourist and in the middle of my surfing, Covid lockdowns began.

I’m a very law-abiding surfer, so when the governor shut down all the beaches, I decided to stop surfing and instead develop an app and business delivering groceries.

My company is called Ronaldinhocart, very original I know. My idea is such a success that a big Silicon Valley VC firm gave me $25 million to scale my company. I can get an O-1A as an extraordinary tech entrepreneur, right?

Arthur: Maybe.

Ron: Let’s just say I got my O-1A for Ronaldinho-cart. Now I want to start an electric car company. The government has already told me I’m an extraordinary dude, so I can just go start this new company, right?

Arthur: Not so fast. Your O-1A is attached to your employer. So, in that case, you have to file a new O-1A, with the new company.

Alternatively, you could keep working for Ronaldinho-cart but then develop a new division of the same company.

Ron: It sounds like when you’re representing an O-1A, there’s going to be a different strategy that you need to be talking to your client about compared with the O-1B context where they can use an agent. Maybe I should be considering an O-1B in nonconventional scenarios?

Arthur: Definitely. Think about some of the creative roles in the tech space. Someone who designs the user interface for apps could potentially be categorized as an O-1B which might allow them to work for multiple companies.

Ron: That brings me to another part of the foundational requirements.

8 CFR 214.2(o)(2)(ii)(C) requires both O-1A and O-1B petitions to “include an explanation of the nature of the events or activities, the beginning and end dates for the events or activities, and a copy of any itinerary for the events and activities.” I can understand this for an O-1B, but if I’m an employer petitioning for an O-1A, what is the event or activities in that case?

Arthur: It’s going to be your employment in the US, your role, your job duties, what are you going to do, where are you going to do it, how are you going to do it. … But let’s talk about O-1Bs. The fascinating part of the O-1B is that it’s often not the Adele’s (or Baha Men) but the category also accommodates non-obvious expressions of art. If you have some success and an established career blowing glass, for example, you could also be eligible for an O-1B. Ron: Let’s talk more about the hybrid people who could go either direction. In this sense, I’d say that extraordinary types share a personality trait of changing course.

You need to know your client. You need to be able to predict their next project and what they’re going to want to do down the road.

Special Edition 2021 Arthur: Totally. There’s a world of people that into find themselves within this hybrid role, not pure artists or performer, but creators with an entrepreneurial side, so as you said, you need to take the time to get to know the client.

Ron: Let’s cover one more topic: the advisory opinion. 8 CFR 214.2(o)(2) (ii)(D) requires a “written advisory opinion from the appropriate consulting entity or entities”. What is the purpose of this requirement?

Arthur: They’re asking for the opinion of a specialist on the subject. It should be from someone who is fairly trustworthy in the eyes of the government. In the case of musicians and artists, they have specific organizations who will issue consultation letters based on the material you submit to them.

But on the business and science side, there’s typically no formal peer group. For example, there’s no group that deals specifically with technology entrepreneurs.

Instead you have to find a specialist in the area. You and I agree that the advisory opinion is one of most important parts of the petition.

Ron: Right. We spend a lot of time on the advisory opinion because it really sets the tone and

the narrative for the rest of the petition. Let’s take the example of an individual who worked for 20 years at Microsoft, and now they want to get an O-1 to start their own company. Is it going to be better for them to get a letter from a lead engineer who was their supervisor at Microsoft and who knows exactly what projects and contributions they made? Or is it better to reach out to someone very well-known, like Mark Zuckerberg, who they met briefly at a conference? Which do you think would be better?

The person who knows me really well? Or the person who’s really famous but who doesn’t know me personally?

Arthur: I would obtain the advisory opinion from Mark Zuckerberg. He’s an outsider to your career and can actually provide an unbiased opinion and independently comment on your work without having a pre-existing relationship with you. At the same time, I’d recommend having the person at Microsoft sign a letter that addresses the Critical Role criterion.

Ron: Of course, that’s just a hypothetical, but I agree. Go for the biggest name you can find for your advisory opinion, be specific in the letter … and make sure the letter is on letterhead.

Arthur: Well, I believe we hit all the main points of extraordinary visas.

The variations and connections of business and creativity are fascinating.

Ron: Indeed. There is so much to explore. The main takeaway of this chat is that you must know your client very well … and carry a holistic approach when understanding their past and helping them shape their future in the US.

About the Authors Ron Matten has a JD from UCLA and degrees in Mechanical Engineering from University of Illinois, together with 25 years of professional experience. Ron brings a unique and fresh perspective to the practice of business immigration law. Ron built and led several high-performance immigration teams at three of the largest business immigration firms before starting Matten Law in Los Angeles in 2018, with a focus on the use of technology to improve the end-user experience. His practice focuses on visa and permanent residence for professionals and extraordinary entrepreneurs. Ron is the former Canada chapter chair and currently serves on AILA’s national CBP liaison committee.

Arthur Deucher Figueiredo is Legal Advisor - Media, Entertainment & Technology at Matten Law. He is a Brazilian licensed attorney from São Paulo, and received his LL.B. and a master’s degree in Constitutional Law from PUC-SP. He moved to Los Angeles to attend the LL.M program at UCLA School of Law, specializing in Media, Entertainment, and Technology Law and Policy. There, he was a member of the Entertainment Law Society and took part in the Music Industry clinic. Arthur represents artists, actors and actresses, musicians, production companies, entrepreneurs and creatives in general.

ILT Magazine

Issue No.3

21

Immigration Lawyers Toolbox Magazine

UNDERSTANDING TRANSLATION REQUIREMENTS FOR IMMIGRATION: 5 Common Pitfalls We See at ImmiTranslate

by IAN HAWES, Managing Partner of ImmiTranslate.com

A

Ian Hawes

Ian@ImmiTranslate.com

t ImmiTranslate, we sit at the crossroads of two very important industries: language and immigration. It should come as no surprise that we’ve accumulated a lot of knowledge related to USCIS policy & procedures. So, while you may be familiar with the basics, I’ve put together this list to keep you informed. Enjoy!

1. The term “certified translation” is a bit of a misnomer.

One of the more common misconceptions about the services we offer comes down to the name. In the context of a certified translation, the “certified” part refers to the presence of the translator’s signature as well as their accompanying certification statement. In effect, the translator is certifying the accuracy and completeness of the translation.

In the United States, there is no legal certifying body or authority that dictates who is certified as a translator. The closest thing we have in the industry is the American Translator’s Association trade organization, who offers certain membership and accreditation options.

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USCIS does not impose any sort of membership or accreditation requirement for translators – a signature and contact information will suffice.

2. Translations must be complete and cannot omit information The law surrounding translations for immigration purposes is clear that the translation provided must be complete.

Often, our clients may ask us to omit information in their translation. For example, when the Trump Administration enacted the Muslim ban, worried clients often requested that their religion be removed from the translation of their birth certificate. While we certainly understand the concern, a complete translation means nothing can be left out – regardless of how it could affect matters.

Another scenario we see, independent of policy changes, is the omission of the back page of certain documents. Foreign birth certificates are often issued by local government registrars who love to stamp things. As such, the back side of the document may contain a stamp or series of stamps. While the stamps are typically benign and not relevant to establishing identity, the absence of the stamp in the translation could give the reviewer pause or potentially trigger an RFE.

Special Edition 2021 3. Translations cannot alter any detail from the source document This is another tidbit that may seem like a no-brainer, but we still routinely receive requests to have information present on the source document altered in some way.

One of the more common requests surrounds names. Clients may request that we change their name to match a legal name change that was processed after the document was issued. Unfortunately, that’s not something we can accommodate either.

We do have some flexibility when it comes to transliteration, or the process of changing characters from one alphabet to another.

For example, the given name “Muhammad” has as many as 27 different spellings in English. Our clients may have a preferred spelling or want to match the spelling present on other documents such as their passport.

Our fulfillment process at ImmiTranslate takes into account this common occurrence. We’re always asking for preferred spellings and make a note to highlight instances where a transliteration should be reviewed by our clients.

4. Always include the title of the document in the certification statement This one can cause trouble for even veteran immigration attorneys or translators. The officially suggested USCIS certification statement includes a section for the “Name of Document” to be inserted.

In most cases, “Birth Certificate” or “Marriage Certificate” is satisfactory, though we encourage contextual information to be extracted and included in the title.

For example, “Birth Certificate of John Smith” or “Marriage Certificate of John and Jane Doe”.

What you’ll want to avoid are ambiguous titles that lump various documents together, such as “Translation of supporting documents” or “Bank Statements”.

Every translated document should have its own certification statement and a verbose title adds an additional layer of accuracy.

5. Translators should always sign the translation In early 2020, we blogged about a change in enforcement regarding translator signatures. What it comes down to is that the translator must be the signatory on the certification, not a company representative or someone acting as a “reviewer”.

If you’re utilizing a different service for your translation needs, be sure to verify that the translation you receive has the signature of the translator, or you may risk a rejection of the translation via an RFE.

Fortunately for us, since 2014, ImmiTranslate clients have always enjoyed the maximum level of compliance with this rule.

Whether you utilize the services of ImmiTranslate or not, I hope this list can shine some light on an often overlooked aspect of case preparation – and save some headache down the line.

ILT Magazine

Issue No.3

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Immigration Lawyers Toolbox Magazine

TIPS FOR PROPERLY FRAMING THE 0-1A FIELD OF EXPERTISE

by KEITH LEE, ESQ.

O-1

nonimmigrant visas, which are further delineated into O-1A’s and O-1B’s, are afforded to those of extraordinary ability in their respective fields. More specifically, as per the regulations, those in the arts, science, education, business, athletics, motion pictures, and television productions fields. O-1 practitioners, in the initial stages must identify and properly label the field of expertise of their O-1 clients.

Keith Lee, Esq.

Keith@EIGLaw.com

The selection of the field of expertise for the O-1 candidate is vital for the success of the O-1 case; such a selection serves as the fulcrum for the support brief, expert recommendation letters, and documentary evidence. As a result, haphazard selection of a field of expertise could lead to a nasty O-1 RFE or even a denial. O-1 practitioners should consider the following when defining the field of expertise for their O-1 candidates:

Background For O-1A’s, the regulations state that candidates should have a level of expertise indicating that the person is of the small percentage who have risen to the very top of the field of endeavor.

Artistic candidates vying for O-1B’s must show distinction in the field of arts.

O-1B distinction means a high level of achievement evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

Too General vs. Too Narrow

A practitioner must prove their O-1 candidate rises to the very top small percentage of the field of choice. The practitioner balances the credentials of the candidate to the field of expertise. A field of expertise that is overly broad and general likely adds an insurmountable burden of proof for the candidate.

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ILT Magazine

Issue No . 3

As we are dealing with a mass invasion of Brood X Cicadas here in the DMV area, we will use an Entomologist (study of insects) as an illustration. For those of you unfamiliar with Cicadas, consider yourself lucky!

Special Edition 2021 The field of science encompasses fields of biology, physics, data science, engineering, etc. Assuming the Entomologist does not have 20,000 citations in their Google Scholar page, using “science” as the candidate’s field of expertise is likely going to be a major barrier to an O-1 approval, as they must surpass all personnel in the sciences. Even the selection of the field of Biology may not be narrow enough, as this includes those in the medical sciences, marine biology, dendrology, and entomology. The Entomologist may not have enough quality evidence to rise to the very top of the scientific and/or biologic fields.

As a counterpoint, the excessive and narrow tailoring of the field of expertise is not always beneficial to the O-1 candidate. The USCIS officer may take note that there are only a precious few in the microscopic field. Additionally, the adjudicator may not easily grasp the technical and specialized field upon first reading.

The field of Entomotoxicology is such an example. Entomotoxicology is a sub-branch of forensic entomology, which is also a sub branch of the field of Entomology.

Entomotoxicology is the analysis of toxins in arthropods that feed on carrion. In this scenario, it may behoove the practitioner to elevate a level or two (forensic entomology or entomology would be good choices) to avoid such a narrow scope of the field and to avoid officer confusion.

Translation from Field Expertise to 8 CFR 214.2(o)

of

As additional background, the regulations were drafted decades ago. Thus, the drafters of the regulations did not consider fields not yet in existence. Some fields of expertise are anachronisms to the O-1 regulations, just as round blocks that do not fit into the square holes of the regulations.

Therefore, it is imperative that the O-1 practitioner translates the field of expertise into regulatory language that the adjudicators are looking for. In addition, there may be certain nuances of the field of expertise the practitioner may want to highlight for the adjudicator’s consideration. The practitioner should give due foundation/ background to the field of expertise

and convert the nuances of the field of expertise into the O-1 regulatory language.

For this section, we will use the field of Gaming Art and Illustrations as an example. Those in this particular field design and illustrate art for video games.

The O-1B regulations are clear as to what types of evidence they are looking for. The criteria looks for neutral evidence such as critical reviews, publications, major newspapers, trade journals, etc. Namely, the O-1B regulations and therefore the USCIS officers specifically look for evidence that the artist was credited for their work. In traditional art fields, neutral sources such as newspapers, trade journals, critical reviews, and publications credit the artists, designers, and illustrators for their artistic work.

ILT Magazine

Issue No.3

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Immigration Lawyers Toolbox Magazine From time to time, the field of expertise of the O-1 candidate does not cleanly match with the proffered position. Job recruiters or headhunters for companies often produce O-1 candidates whose field of expertise may not line up with the field of the job position, despite the fact that the O-1 candidate is actually qualified for the position.

The video game industry, as a contrast, does not typically credit their Gaming Artists and Illustrators for their work on video games properly. In fact, the video game industry is notorious for not giving credit where credit is due, which can present a huge challenge for O-1 candidates in the video game industry. Therefore, the practitioner should present industry evidence that the video game industry does not properly credit their Gaming Artists and Illustrators.

The practitioner should also indicate which evidence is considered industry standard to indicate prominence and distinction specifically for the field of video game design. Examples include may include ArtStation views, YouTube subscriptions, and letters of recommendations. This way, the USCIS officer will be equipped with background knowledge of the video game industry and will be able to apply the O-1 regulations to the video game industry.

Matching the Proffered Position to the Field of Expertise

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O-1 candidates are to work in the area of extraordinary ability.

Practitioners are required to submit evidence of the terms of the proffered position and the extraordinary ability of the O-1 candidate. As a result, a nexus must exist between the field of proffered position and the field of expertise.

ILT Magazine

Issue No . 3

As an example, an O-1 candidate whose field of expertise is Computational Chemistry is offered a position as a Data Scientist.

Computational Chemistry is a branch of chemistry that uses computer simulation to assist in solving chemical problems.

The Practitioner, in this particular scenario, can connect the seemingly un-related fields by highlighting the similarities, underlining the liquid nature of personnel between the two fields, and emphasizing the specific credentials of the O-1 candidate which lends well to the field of the job position. The practitioner, in the case of the Computational Chemistry expert, should underline the coding and computer modeling nature of the two fields, the fact that a Computational Chemistry expert can easily transition into a Data Science position, and the experience that the O-1 candidate has in Data Science related positions.

The Adjudicator’s Understanding of the Field Would the reasonable and rational officer understand the field?

On a practical point, the adjudicator must understand the field to properly frame the candidate as one of the elites in the field.

The practitioner should provide background information in the legal brief and background evidence in the exhibits to explain the field of expertise. Without the proper proffer of the field of expertise background, the practitioner leaves the outcome of the O-1 case in the hands of the adjudicator’s wild imagination.

We can look at the field of Oncolytic Virology. On its face, an adjudicator will likely not have the medical background to immediately identify the field. As a background, Oncolytic Virology, or otherwise known as Oncolytic Virus Therapy, is a field of medical study where viruses are used to combat cancer.

Special Edition 2021 The practitioner would be well advised to either (1) provide a robust background on the field and the expectations for its top performers; and/or (2) slightly adjust the field name to be a better fit for USCIS digestion. This would allow the USCIS adjudicator to immediately identify and comprehend the field and the expectations for that specific field’s tip of the spear. An adjustment that the practitioner could make would be to adjust the name of the field to Oncolytic Virus Therapy.

The practitioner could also aptly describe the field and facilitate the comprehension of the case by the adjudicator.

About the Author

Keith Lee is an Associate Attorney with Erickson Immigration Group.

He has been practicing immigration law for 5+ years in Virginia, Washington D.C., and Texas. His practice focuses on corporate immigration, working with large, medium, small, startup, and agency companies filing employmentbased petitions for foreign workers seeking temporary and permanent employment in the United States. His experience includes immigrant and nonimmigrant

visa petitioners. Keith has a vast array of experience advising clients on corporate immigration matters and has experience with bio-pharmaceutical, gaming, design, fashion, social media, and technology companies. Keith’s focus and expertise revolve around the EB-1A/EB-1B immigrant petitions and O-1 nonimmigrant petitions.

Keith is proficient in the preparation and filing of non-immigrant visas such as H-1B and O-1’s. He is also adept in the immigrant visa

The proper framing of the field and its nuances is the foundation upon which the case is built. By adjusting the scope of the USCIS review to match the reality of the field and the expectations for that specific field’s elite small percentage, the O-1 case is properly framed from case initiation. processes, including the preparation and filing of PERM, EB-1A/EB-1B I-140 petitions, EB-2/EB-3 I-140 petitions, and I-485 Adjustment of Status applications. He is also well-versed in family immigration law and, in the past, represented individuals seeking family-based green cards, naturalizations, and Asylum applications. Keith is a first-generation Korean American.

He enjoys the outdoors, traveling the world, and enjoys new culinary experiences.

ILT Magazine

Issue No.3

27

Immigration Lawyers Toolbox Magazine

WHY O-1 VISA APPLICANTS CAN BENEFIT FROM A BUSINESS PLAN

by MARCO SCANU, Visa Business Plans

O-1

Marco Scanu

Info@VisaBusinessPlans.com

visas are for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.1 Although business plans are not required for O-1 visa applications, they can help immigration attorneys build stronger O-1 petitions for clients in the area of business. More and more attorneys are including business plans as an integral part of their clients’ O-1 applications.

Like other immigration business plans, O-1 projects have to be credible and realistic, articulating the nature and scope of the business in question. However, O-1 plans differ in that they must highlight the hero of the story: the beneficiary. An effective O-1 business plan emphasizes how the individual with extraordinary abilities will be indispensable to the success of the business and details exactly how their specific skills will help achieve this goal.

O-1 business plans also reference the beneficiary’s achievements in their field, providing evidence that they are likely to succeed again in this new venture.

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1 U.S. Citizenship and Immigration Services “O-1 Visa, Individuals with Extraordinary Ability or Achievement.” | December 1, 2020

Furthermore, since most O-1 applicants are sponsored by a company or employer, an O-1 business plan can assist in proving the viability of a beneficiary’s sponsor.

While larger companies will have an easier time demonstrating their operational and financial capabilities, smaller employers often receive more attention from USCIS and may be asked to verify more facts about their businesses. For these smaller employers, such as start-ups, O-1 business plans help show their ability to compensate the foreign employee during their time in the U.S.

In order to approve an O-1 visa, USCIS must be able to understand the business the beneficiary will be involved in after only a quick read-through. Unfortunately, sponsors may have trouble clearly articulating their business models and growth plans. This is where a solid business plan comes in! O-1 business plans provide a detailed summary of the business that the beneficiary will be involved in, reducing the likelihood of any confusion.

At Visa Business Plans, we have prepared successful O-1 business plans for chefs, pizza concept entrepreneurs, architects, high-end designers, serial entrepreneurs, tattoo artists, and other individuals with extraordinary abilities in the arts.

Special Edition 2021

In addition to strengthening O-1 visa petitions, business plans can help immigration attorneys effectively respond to Requests for Evidence (RFEs). For example, our team recently crafted a business plan to respond to an RFE that included the following language:

“Additionally, given that you have indicated that your organization does not currently employ anyone and your gross annual income is $9,319.44 and net annual income is $21,038.46; USCIS cannot determine your ability to offer the beneficiary the aforementioned wage for the entire requested threeyear period.”

In response to this RFE, we created a business plan that clearly articulated the petitioner’s plan to grow the business to a size that would support the beneficiary – and be able to pay their salary.

Visa Business Plans’ founder, Marco Scanu, was granted an O-1 visa in entrepreneurship and management of entrepreneurial ventures. Since his sponsor was a start-up, the attorney who handled his case decided to add a business plan to his application, making a tremendous difference in the outcome of his O-1 petition. Consequently, Mr. Scanu understands the importance of including solid immigration business plans in O-1 petitions better than anyone. Contact Visa Business Plans today to learn more about how our thorough, comprehensive, and detailed immigration business plans can help you prepare a stronger O-1 visa petition.

About the Author Visa Business Plans is led by Marco Scanu, a certified coach from the University of Miami with a globally-based practice coaching Fortune 1000 company executives, entrepreneurs, as well as professionals in 4 different continents. Mr. Scanu advises clients on turnaround strategies and crisis management.

Mr. Scanu received a bachelor’s degree in Business Administration (Cum Laude) from the University of Florida and an MBA in Management from Bocconi University in Milan, Italy. Mr. Scanu was also a Visiting Scholar at Michigan State University under the prestigious H. Humphrey Fellowship (Fulbright program) with a focus on Entrepreneurship, Venture Capital and high-growth enterprises.

At present, Mr. Scanu is the managing partner and CEO at Visa Business Plans, a Miamibased boutique consulting firm providing attorneys and investors with business planning services in the areas of U.S. and Canadian immigration and SBA loans.

ILT Magazine

Issue No.3

29

Immigration Lawyers Toolbox Magazine

O-1 HYBRID CASES

by MONICA ROISMAN, Esq.

One of the reasons that I enjoy handling

Monica Roisman, Esq. MonicaRoismanLaw.com

O visa cases is that you can use your creativity in formulating a client’s case.

There is no set rule that they must qualify for extraordinary ability in the sciences, arts, education, business, or athletics.

Many times applicants can be eligible under more than one category, which can help bolster their cases. By combining categories, you are getting two bites at the same apple when documenting your file.

When handling an O-1 case, it is our job as attorneys to prove that our applicant has risen to the very top of their field.

This standard can be daunting, but please remember that many factors can be used to prepare our client’s case. I always sit back and create an illustration of prongs that can be proven and an initial list of documents to send to the client. Once I start receiving documents, I frequently think of other documents that can be used to prepare their case.

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One case that I prepared that comes to mind was for a substance abuse therapist, and I used the combination of the science and education categories to documents my client’s file. This was his magic recipe to help his patients and their families receive the therapy that they desperately needed and led to

Issue No . 3

many positive outcomes, in a region that had a huge epidemic of individuals with substance abuse issues. He was active in his community by readily distributing free test kits to curb the further spread of drug addiction. He had multiple Masters Degrees in his subject area and was a clinically trained Psychoanalyst. He also received recognition both nationally within his own country and at the international level in the form of medals and certificates. By including his course materials from lectures that he gave to other professionals, manuals he prepared for the individuals and families that he treated, letters from industry experts, and the scientific methods that he used to treat others, we were able to meet the threshold criteria of extraordinary ability.

In addition, he was a published author, so he shared his methods with others, and also wrote children’s books to warn them about the effects substance abuse could cause. We used book sales and internet data hits to help demonstrate how his materials were being disseminated worldwide. In a sense, I was briefly introducing the business prong of the O-1, but since this was not a significant factor in his case, I chose not to highlight it and placed it towards the end of the supporting document package.

Special Edition 2021 It is important to note that it is not just the quantity of documents that you provide for your cases but that you also submit documents with quality. You need to vet each and every document to determine its worth in ultimately proving your case. There were many documents that this gentleman provided to me that I did not end up using because I determined that they would not be helpful to the cause.

While not always the ideal route for any given case, it is important to remember that we are here to educate the immigration officers on why our client has risen to the very top of their field. The hybrid approach has worked for me several times, and should not be discounted, because of the added value that it can provide to your client’s cases. However, it is by no means recommended for every O-1 case that you prepare. This decision needs to be made on a case-by-case basis.

About the Author

Monica Roisman has been practicing Immigration Law exclusively since 2002. She has been a sole practitioner in Miami, Florida, since 2003.

Some of the first cases she handled in her career were for professional boxers and their trainers and coaches, some of whom went on to become world champions.

In addition to sports and entertainment visas, she has a multifaceted boutique practice, including family-based cases, employment-based cases, and consular processing. She frequently speaks on panels about Adjustment

of Status and many immigration issues.

other

Throughout the years she has been an active member of the AILA South Florida Chapter, serving on many liaison committees. She is the Past Chair of the USCIS-Miami District Office Liaison committee and served on this committee for 7 years through June of 2020.

She was also currently a member of AILA National USCIS Field Operations Committee from 20192021. She currently serves as a member on the AILA South Florida Customs and Border Patrol Liaison committee and the AILA National Distance Learning committee. She

is also a member of the AILA Latin American and Caribbean Chapter, the AILA Rome District Chapter, and the AILA Asian and Pacific Chapter.

She graduated from Carnegie Mellon University with a Bachelor of Science degree in Anthropology and History, with an additional major in Industrial Management.

She received her Juris Doctor degree from the University of Miami School of Law. She is licensed to practice law by the Supreme Court of Florida, United States District Court for the Southern District of Florida, and the United States Court of Appeals for the Eleventh Circuit.

ILT Magazine

Issue No.3

31

Immigration Lawyers Toolbox Magazine

WHY DOCKETWISE OPENED ITS API TO THE PUBLIC

by JEREMY PESKIN, CEO at Docketwise

With Challenges Come Innovation Over the past five years, we’ve seen unprecedented pressure and change in US immigration.

Jeremy Peskin CEO at Docketwise Jeremy@Docketwise.com

From the Trump administration’s public charge rule and travel bans to Covid-19, these have been challenging times for immigrants and immigration practitioners.

However with innovation.

challenges

comes

Across the immigration space, new technologies have emerged to solve problems both new and old.

Client-facing apps like LegalPad and Boundless help companies and individuals navigate the immigration process.

Meanwhile solutions for attorneys have sought to modernize almost every aspect of immigration lawyering. LegalBoards helps lawyers get things done quicker and more efficiently.

ImmiTranslate makes translating legal documents easier.

Services like Docketwise streamline form preparation and case management.

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We’re even seeing the arrival of apps that help lawyers build their own apps.

Community.lawyer launched a #nocode tool for legaltech, which Greg Siskind used

to build Public Charge Advisor. Another immigration lawyer, Jared Jaskot, founded yotengo.bot to help firms build their own AI powered chatbots.

These are exciting times for modern immigration lawyers and their clients. Yet the utility of modern apps can be limited if they are siloed.

Better Together - The Power of APIs

Much of the same data, like clients’ names, address histories, translatable documents and matters, are used across apps. Yet a frictionless flow from intake bot to case management system to translated documents and back is not possible without some connection between them.

This is where API’s are so powerful. An API is like a tunnel in cyberspace that can unite completely different apps under a singular purpose, like modernizing an immigration practice.

Often, a product with a well built API will serve as a platform for disparate apps to interact with it, and with one another.

Apple’s API changed modern history by giving apps like Uber and AirB&B access to iPhone owners. In the legal sector, Clio’s API and app directory has served as a powerful platform for legaltech.

Special Edition 2021 However, in immigration tech, no platform has emerged.

At Docketwise, we feel we have the power to change that. With thousands of immigration lawyers and paralegals logging into Docketwise every day, we have the unique ability to connect immigration firms with tech that will make their lives easier.

For that reason, we opened the most critical functions of our application to the public via a secure and RESTful API. Our integrations with popular tools like QuickBooks, LawPay, Gmail, Outlook, Zapier and others are already critical to our users’ workflows. We’ve seen firsthand how much more useful apps are together than they are apart.

Our own open API has enabled us to go a step further by integrating with more targeted immigration-focused apps. These technologies are built specifically for immigration lawyers and enable us to enhance our users’ lives in sometimes almost magical ways. Examples include: ● I m m i T r a n s l a t e .

ImmiTranslate is a leading provider of certified translations for immigration lawyers.

The integration enables ImmiTranslate to access law firms’ foreign language files (with permission, of course), translate them behind-the-scenes and then deliver the translated copies right back into Docketwise

● YoTengoBot. YoTengoBot is a chatbot made specifically for immigration law firms and speaks Spanish. The integration enables law firms to seamlessly intake clients and leads into Docketwise via a chatbot inside Facebook Messenger, WhatsApp, and SMS.

● LegalBoards. LegalBoards helps law firms build, and execute customized workflows for daily work with lean and agile methodologies.

The integration sends Docketwise matters to LegalBoards for tracking and automation.

What This Means for You

Whether you’re an immigration practitioner, immigrant or technologist, you’ll benefit from a community of immigration software applications united by a common secure API.

● Practitioners: your data should be free to flow with you, not trapped in silos. The less time you waste retyping information the more you can spend providing value to your clients. If there’s an app that you love alongside Docketwise, encourage them to integrate ● Technologists: secure and authenticated access to information removes friction from your own products, improving your users’ experiences. The app directory also provides a platform where immigration firms can find your product. As many of us understand, building a useful app is the easy part - finding users is the challenge

ILT Magazine

Issue No.3

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Immigration Lawyers Toolbox Magazine

PETITIONER OPTIONS FOR 0-1 VISA APPLICANTS

by FIONA MCENTEE, Esq. & RAYMOND MCENTEE, ESQ. What is a Petitioner?

O

-1 extraordinary ability visa is a uniquely flexible option. It covers a wide range of industries including business, sports, and the arts, and allows for a range of petitioner structures. Unlike most other employment-based nonimmigrant visas, which limit the foreign national’s work to one employer, there are several ways an O-1 petitioner can file a case for an extraordinary individual. This flexibility is critical for extraordinary applicants in unconventional fields, because their talents are often in demand by multiple entities.

Fiona McEntee, Esq.

Fiona@McEnteelaw.com

Raymond McEntee, Esq.

Raymond@McEnteeLaw.com

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Flexible employment authorization is one of the greatest advantages of the O-1 visa, so it is very important to choose a structure that allows extraordinary individuals to maximize their time and the impact of their talents in the U.S. This article is a primer for the petitioner arrangement options that petitioners, beneficiaries, and immigration attorneys can consider together when filing an O-1 application.

Issue No . 3

A petitioner is a person or entity who submits the O-1 nonimmigrant petition on behalf of a foreign national to U.S. Citizenship and Immigration Services (USCIS). The petitioner signs the necessary USCIS application forms and letter of support that accompanying the required documents and supporting evidence to demonstrate that the beneficiary meets all O-1 requirements.

In filing this application, the petitioner attests that the extraordinary beneficiary intends on working in their area of extraordinary ability when they arrive in the U.S., whether they work for one employer or more.

Who can be a Petitioner?

A U.S. employer or agent can be a petitioner and file an O-1 with USCIS. Depending on the beneficiary’s specific employment circumstances and plans in the U.S., the petitioner may act as their employer, agent performing the function of employer, agent for multiple employers, or agent for a foreign employer.

If the O-1 beneficiary plans to have one employer, the sole employer may act as the beneficiary’s petitioner and file the O-1 application on their behalf.

Special Edition 2021 This is the most straightforward arrangement and is commonly found in more traditional fields, such as business or science. For example, a corporation can file an O-1 application on behalf of its CEO. In this case, the O-1 application must include:

If the O-1 beneficiary will have multiple employers or continue their work in the U.S. on behalf of a foreign employer, an agent petitioner may file the O-1 application on their behalf. This can ensure that the beneficiary’s employment authorization is flexible enough to meet their professional goals as well as the goals of the employers and organizations they will serve in the U.S. An agent petitioner can act as the beneficiary’s employer, a representative of the beneficiary’s foreign employer, or as a representative for both the beneficiary and multiple employers.

Who Can Act as Agent

A US agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and also in cases where a foreign employer authorizes the agent to act on its behalf. The U.S. agent may be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or a person or entity authorized by the employer(s) to act in place of the employer(s) as its agent.

An agent petitioner does not necessarily need to be an agent as traditionally defined by U.S. law. The agent can be a traditional agent or someone or some business designated as agent by the parties.

Thus, there is some flexibility as to who can act as agent for O-1 purposes.

The agent petitioner must ensure the accuracy of the O-1 petition and is responsible for the reasonable return costs of transportation abroad for the beneficiary in the event that the employment is terminated early (not including voluntary resignation).

Agent as Employer

In cases where the agent will act as the beneficiary’s employer, the agent and the beneficiary must prove that they will have an established working relationship.

They must show that the agent as employer has a level of control over the beneficiary’s work as their employee. If the agent has the ability to hire, fire, pay, and determine the terms of the O-1 beneficiary’s employment, they can file the O-1 petition as agent as the beneficiary’s employer.

• The contractual agreement between the agent and the beneficiary. This could be a summary of the terms of an oral agreement, a summary of the terms of a written employment contract, or a complete written employment contract.

• Specification of the wage(s) offered, along with an explanation of any other terms and conditions of employment.

• If the beneficiary is required to work in more than one location, you must include an itinerary of the beneficiary’s proposed activities with dates, locations of performances, events, etc. In this instance, USCIS does give some flexibility to how detailed the itinerary must be, but the more concrete the details are, the stronger the evidence will be.

ILT Magazine

Issue No.3

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Immigration Lawyers Toolbox Magazine Agent for Multiple Employers In cases where the petitioner will act as an agent for multiple employers, the petitioner must establish that they are “in business as an agent”. The regulations do not specify what evidence is required to establish that the petitioner is “in business as an agent”. Adjudicators should consider evidence which demonstrates by a preponderance of the evidence that the petitioner is in business as agent for the event as outlined in the O-1 petition.

Adjudicators should focus on whether the petitioner is authorized to act as agent for all U.S. employers included in the O-1 petition for the purposes of filing the O-1 petition and the petitioner needs to clearly establish this. The petitioner does not need to demonstrate that it normally serves as an agent outside the context of the O-1 petition.

The petitioner can establish that they are authorized to act as agent for all U.S. employers included in the O-1 petition for the purposes of filing the O-1 petition by including documentation, signed by the beneficiary’s other employers, stating that the agent is authorized to act on their behalf for the

limited purpose of filing the O-1 application.

This arrangement can work well in circumstances where the O-1 beneficiary is traditionally selfemployed and is coming to the U.S. to work for multiple U.S. employers.

For example, a music photographer who will be employed by a music magazine, a label, and a music festival would need an agent for multiple employers.

To give another example, a professional athlete may be primarily employed by a professional sports club or league, but they may want to do sports commentary or act as a sportswear brand ambassador. They can maximize their employment authorization by having an individual agent or professional agency file their O-1 application and include multiple employers.

In this scenario, they could be simultaneously employed by their league, a sports television network, a modeling agency, and sportswear brands. This may be allowed under the O-1 visa so long as all parties consent and the beneficiary’s work falls within their area of extraordinary ability.

In this case, the O-1 application must include:

• A detailed itinerary specifying the dates of each engagement, the names and addresses of the actual employers, and the names and addresses of the establishments/ venues/locations where the services will be performed.

• Contracts between the agent, employers, and beneficiary. This could be a summary of the terms of an oral agreement, a summary of the terms of a written employment contract, or a complete written employment contract.

• Specification of the wage(s) offered, along with an explanation of any other terms and conditions of employment.

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ILT Magazine

Issue No . 3

• Written confirmation from all employers, stating that the agent is “in business as an agent” and that they authorize the agent to file the O-1 petition on their behalf.

Special Edition 2021 Agent for Foreign Employers In cases where a petitioner acts as an agent for a foreign employer, they must establish that they represent the foreign employer solely for the purposes of filing the O-1 petition.

For example, a musician or band can have an agency or foreign company incorporated to furnish their services to U.S. venues, promoters, music festivals, etc.

• Contracts between the foreign employer and the beneficiary.

This could be a summary of the terms of an oral agreement, a summary of the terms of a written employment contract, or a complete written employment contract.

• A detailed itinerary specifying the dates of each engagement, the names and addresses of the actual employers, and the names and addresses of the establishments/ venues/locations where the services will be performed.

• Written confirmation from the foreign employer, stating that they authorize the agent to file the O-1 petition on their behalf and accept process on their behalf, should any employmentrelated sanctions arise.

In this case, the O-1 application must include:

• Specification of the wage(s) offered, along with an explanation of any other terms and conditions of employment.

The regulations do not require any additional documentary requirements for an agent filing on the behalf of a foreign employer.

However, the foreign employer is responsible for complying with all applicable employer sanctions provisions.

The O-1 is an attractive option for extraordinary individuals and their agents because it is flexible.

That flexibility allows all parties to maximize opportunities for growth and allows extraordinary nonimmigrants to come to the U.S., contribute their talents.

About the Authors

Fiona McEntee is the Founder and Managing Partner of McEntee Law Group and regularly leads panel discussions at AILA Conference about the O-1 visa.

Raymond McEntee is a Partner at McEntee Law and

leads the sports/music immigration side of the firm.

They are proud Irish immigrants who are passionate about guiding extraordinary immigrants through the U.S. immigration process.

ILT Magazine

Issue No.3

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Immigration Lawyers Toolbox Magazine

BUSINESS PLAN EXPERTS WEIGH IN ON E-2 & L-1 Renewals & RFEs in the Wake of Covid-19 Although

by PAUL MONSON, Director & Partner at Joorney Business Plans

there are new variants of coronavirus on the rise, life here in the U.S. has slowly started feeling more “normal” — more vaccinations, fewer masks, and less physical distance between us and our friends, family, and colleagues — but we’re not yet fully back to business as usual. Because of this, many businesses with visa renewals coming up are feeling understandably anxious.

Paul Monson

Paul@Joorney.com

Due to COVID-19, many businesses have not performed as expected. In terms of immigration, this often means they didn’t meet the financial or hiring projections they originally expected, had to pivot or change their business model, or otherwise fell short of the goals outlined in their last visa application. As you can imagine, many immigrant entrepreneurs are worried that their visas might not get renewed.

Sure, COVID-19 has battered the US economy, and if you’re a business owner, your business might not have achieved all the goals you set in the past year. But fortunately, that doesn’t necessarily mean that your visa is in jeopardy!

While we won’t venture to provide legal advice (if you’re an applicant or visa holder, you should always speak to an immigration attorney if you have legal

questions), we are experts at business plans. We handle all types of business immigration visas from O-1s to H-1Bs to EB-5s, but we are especially familiar and well-versed in E-2s and L-1s.

So, from a business perspective, here’s what we think COVID-19 can mean for renewals, why it may not be as bad as many think, and how you should approach your E-2 and L-1 visa renewals in the time of COVID-19.

The Silver Lining for E-2 & L-1 Visa Businesses Impacted by COVID-19

This year, we have seen our fair share of initial L-1A renewals come through. There have also been many E-2 and regular L-1s that just happen to be up. Whether brand new or well-established, most of these businesses were significantly impacted and have not had time to get back on track or are still in the process of pivoting their business in response to the challenges posed by the pandemic.

But there is a silver lining here from a visa perspective. Because COVID-19 touched almost every industry, explaining why an E-2 or L-1 business didn’t perform exactly as promised in the original application or last renewal may actually not be that difficult.

Receiving business plans next week when you needed them yesterday?

JOORNEY BUSINESS PLANS Business plans on time. Every time.

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ILT Magazine

Issue No . 3

Get Started

Special Edition 2021 ● Reduced staff density to comply with social distancing, impacting production and revenue goals;

lans next week em yesterday?

.

Normally, if a specific industry went through some kind of downturn, applicants would have to provide detailed and nuanced evidence and proof of what happened to that industry, why it happened, and how it impacted business.

COVID-19 has been different.

COVID-19 impacted every corner of the world and every industry, and so making the case that the pandemic had an impact on a particular L-1 or E-2 business may, from that perspective, be a bit easier. Further, USCIS has been really reasonable with renewal applications where it’s clear that the business tried its best to stay afloat.

But the business still has to be viable to get a renewal, right? Well, here are some thoughts on how to demonstrate that an L-1 or E-2 visa business is viable despite, and in light of, COVID-19.

COVID-Era Visa Renewals Need to Get Creative from a Business Perspective

This may be obvious, but let’s look at some of the unprecedented setbacks businesses experienced due to the pandemic: ● Lowered wages or working hours for employees;

● Staff put on leave, furloughed, or laid off;

● Reduced hours of operation or levels of production;

● Shut down locations temporarily or permanently; and more.

Businesses that have survived — or even thrived in some instances — had to get creative. Your renewal should showcase that creativity that ensured your business’ survival.

So, for example, if a small restaurant had originally planned to hire three cooks and four waitstaff but, because of COVID, had to close their dining room, that might seem like a failed E-2 business. But since takeout and delivery really skyrocketed during COVID, maybe that restaurant hired just one cook but then had seven people running delivery. Maybe they invested in digital marketing more than they expected to get patrons to order from them, which actually elevated their brand even more than originally planned.

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Here are some questions to ask yourself: ● Did you add new products or services in response to the pandemic? ● Have you attracted new clients in a different way?

● Maybe your business was forced to initially lay off or furlough employees, but can you describe the path you took to rehire these employees?

● Did your business add an e-commerce aspect to a historically brick-andmortar model in order to expand your reach?

The idea here is to think about what you did to get through COVID and how that can be seen as an asset to the long-term viability of your business.

If these types of strategic pivots that businesses made during the pandemic are included in the business’ visa renewal documentation, it can show that despite not reaching their original goals, they have morphed their business to grow into a new, additional direction that is, at the end of the day, still creating jobs and good for the US economy.

Ultimately, business owners had to get scrappy and creative to get through the pandemic. These strategies demonstrate strength and can help make visa renewal applications stronger during these tough times.

Genius MBA clients writing business plans you can’t use?

JOORNEY BUSINESS PLANS

USCIS-ready business plans ILT Magazine

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Issue No.3

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Immigration Lawyers Toolbox Magazine Responding to an RFE When Things Didn’t Quite Work Out

Freelance business plan writer taking their 5th vacation this year?

Despite putting your best foot forward and making a strong case in the renewal you may still end up with a Request for Evidence (RFE).

USCIS is still overwhelmed, and, in some cases, they are requesting RFEs as a way to streamline their own processes.

JOORNEY BUSINESS PLANS Always reliable. Always responsive.

lockdowns, stay-at-home orders, reduced density orders, or anything else put in place by state and local governments due to COVID-19, including this information as part of the L-1A visa renewal application can help show USCIS that there were events out of your control that affected the way the company’s business unfolded.

It’s true that RFEs are typically a bad thing, but it does not mean your renewal is doomed. Plus, RFEs often include examples of the kind of evidence USCIS wants to see, which actually makes it easier to reply.

Here are a couple examples of how we’ve seen and helped L-1 and E-2 renewal applicants make their RFE case or avoid an RFE to begin with: ● Evidence that employees were hired, even if they were eventually let go. If you had to furlough or lay off employees, providing documentation or evidence, like pay stubs, employee schedules, etc., that shows how long they were part of the company, that you paid them, why you furloughed or let them go, etc., could be good evidence of your efforts during an otherwise challenging time. ● Evidence of outside restrictions.

If your business was affected by

● Modified business plan.

Showing USCIS a business plan that demonstrates how your business will adapt to the new reality can help give a more convincing and complete picture of how your business will recover and thrive, and highlight the continued contribution you will make to the overall economy.

Focus on the Future, Explaining Away the Past

Not

Ultimately, USCIS isn’t out to close businesses, and just because COVID got in the way of expected revenue and hiring plans doesn’t mean that your time as a visa holder is over or the business must shut down.

Contact Us

The trick is to address the COVID elephant in the room. Demonstrate how the pandemic impacted your business specifically, make clear the measures you took to adapt, and – most importantly – show the potential for the business in the future.

If the business has changed substantially, including a revised business plan is recommended.

It is also the strongest way to bring more attention to the future trajectory of the business, rather than allowing focus to remain on missing the objectives under your initial application or last renewal.

No matter how strong the application, there is always a chance of receiving an RFE. These too need to be approached carefully but in many cases, they still lead to approval.

Approach your renewal or RFE with these things in mind and you will be well on your way to success. Plus, you – or your clients – don’t have to go it alone. If you need assistance with a modified business plan or responding to RFEs, we’re always here to help!

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Issue No . 3

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Immigration Lawyers Toolbox Magazine

THE “SELF-PETITION” O-1 VISA:

The Most Versatile Option for Today’s Entrepreneurs

by JOSEPH TSANG, Esq.

H

Joseph Tsang, Esq.

JDTsang@TsangsLaw.com

ow do you advise a client who is talented and an expert in her field but does not have a sponsoring company?

Or perhaps the client already established a company as the executive and asks if his company can sponsor his O-1 visa.

In most instances, the O-1 “self-petition” visa is the best option.

ILT Magazine

Here are a few statistics on the O-1 Visa from our firm:

Now to set the record straight, the O-1 beneficiary may not “self-petition” as is the case with the EB-1 extraordinary ability immigrant visa category. However, USCIS does allow a separate legal entity owned by the O-1 beneficiary to serve as the petitioner in certain cases1.

Additionally, O-1 petitions are amendable to traditionally self-employed individuals by allowing an agent or employer to arrange short term employment with numerous employers. In short, the “selfpetition” O-1 visa is a versatile “catch all” option for professionals in all industries who are looking to create their own company or seeking to expand an existing business in an unrelated field.

At our firm, we have helped hundreds of young entrepreneurs and professionals in all trades successfully establish their companies as a bona fide employer to meet the O classification. Recently, we helped a graduate student at MIT establish a biomedical company with his professor to launch his breakthrough biomedical

42

invention. Our firm drafted the bylaws, business plan, and ownership documents showing that though he was majority owner, board member and the president, the company had sufficient control over the beneficiary and was therefore a bona fide employer. His O-1 was approved shortly thereafter. We included several other success stories that you can find in Appendix 1.

1 9 FAM 402.13-2(b) “USCIS regulations provide that the petitioner may be either an employer or agent. While O-1 beneficiaries may not self-petition, a separate legal entity owned by the O-1 beneficiary may be eligible to file a petition on behalf of the O-1 beneficiary.”

Issue No . 3

Special Edition 2021 Bona Fide Employer – Employee Relationship To successfully prove that the selfincorporated O-1 company is valid, USCIS requires documentation of the following2:

1) The company is a bona-fide employer; 2) The petition is not based on speculative employment and 3) The terms and conditions of actual employment qualify for the O classification.

1. Bona-fide Employer

A bona-fide employer is found to have a employer-employee relationship if it may “hire, pay, fire, supervise, or otherwise control the work of any such employee.”

See 8 CFR 214.2(h)(4)(ii). The recent USCIS policy memorandum issued on June 17, 2020 affirms that USCIS must examine if there is at least one of the “hire, pay, fire, supervise, or otherwise control the work” factors in order to determine if there is a valid employer-employee relationship.

This new guidance overturned previous memorandums which required petitioners to show “the right to control” over when, where, and how the beneficiary performs the job, specifically targeting self-employed and workers at third-party locations. Although the old standards have been rescinded, it’s still good practice to continue including documents

that demonstrate the company’s ability to “control” the beneficiary’s employment. Though USCIS should not deny cases that do not meet the old standards of bona-fide employer-employee relationship, it should certainly approve cases that do meet these standards.

Sample documents to prove the employer has ability to hire, pay, fire, supervise or otherwise control the work of an employee include:

1. Bylaws specifying authority of Board of Directors to hire and fire the beneficiary; 2. Board Minutes showing installation of Board of Directors and their control over beneficiary’s employment; 3. Ownership documents, including stock ledger, share certificates, and shareholder agreements; 4. Employment offer letter specifying how the company will supervise beneficiary’s work; 5. Payroll records showing that beneficiary is paid by the company (if already on payroll); 6. Articles of Incorporation, EIN, and other tax documents showing valid incorporation; 7. Corporate Tax Returns (if filed) or projected financials to show projected ability to pay beneficiary wages; 8. Detailed Job Description, showing the beneficiary’s position and responsibilities;

2. Employment “Speculative”

is

Not

The employment offer must be bona-fide and not based on prospective or “wishful” work.

USCIS has required that the petitioner or agent submit a written or oral contract of the terms of employment that was agreed upon by the employee. In the case the self-incorporated company serves also as an agent for the beneficiary, an itinerary of events or activities must also be included. The itinerary must include specific dates of each event, the location of the employers or clients or the venue of the activity.

USCIS acknowledges that there may be short gaps between events and that events may be added to the itinerary after the O-1 petition is approved. The USCIS Adjudicator Field Manual specifically states that an extension application should not be denied “solely on the basis that the event that supported the initial petition has changed.”3

See Appendix 2 for a sample exhibit list with more documents showing ownership and control over the beneficiary.

2 https://www.uscis.gov/working-in-the-united-states/temporary-workers/o-1-individuals-with-extraordinary-ability-or-achievement/o-nonimmigrant-classifications-question-and-answers 3 https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-9 ILT Magazine

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Immigration Lawyers Toolbox Magazine 3. Terms and Conditions of Actual Employment

Sample documents to include in the petition include: 1. Employment contract or agreement between company and beneficiary; 2. Itinerary of events and activities; 3. Intent letters from clients showing bona-fide work opportunities; 4. Contracts or invoices; 5. List of projects to be performed by the beneficiary;

The terms and conditions of the employment must reflect one of the three types of O-1 petitioners: employer, agent, employer and agent. The terms should also demonstrate compensation details such as wage levels and benefits.

The employment should also entail sufficient description of the job duties that will be performed by the beneficiary in his or her field of endeavor. In cases where the beneficiary’s background may not be a perfect fit with the petitioning company, we recommend including a job description with sufficient details to help USCIS make the connection. Our firm also includes business plans and detailed job descriptions to provide context for the beneficiary’s employment, especially if the company is expanding in a new market or industry through the beneficiary’s expertise.

Takeaway In recent years, the O-1 visa has become one of the most versatile work visa options for entrepreneurs and self-starters who want to create their own business but don’t fall into one of the other work visa categories. The O-1 extraordinary ability is a fun and flexible visa that may be creatively applied to all types of professions and industries. For example, at our firm, we have successfully petitioned for real estate agents, a biomedical inventor, and a digital marketing specialist – all of whom had created their own companies.

With the proper business strategy and legal strategy, the O-1 visa may be the answer to many clients seeking employment of their choice in the U.S.

About the Author

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Joseph Tsang is the Chair for AILA National’s Law Student Engagement Committee (formerly Outreach Committee) and also the managing partner for Tsang & ILT Magazine

Issue No . 3

Associates, an international law firm with offices in Los Angeles, Taipei, and Shanghai. Specializing in complex cases that require creative solutions, Joseph has built a team

of experts that assists individual clients and other law firms win approvals. He is a mentor to many law students and lawyers and is an advocate for immigration reform.

Special Edition 2021 APPENDIX 1: Tsang & Associates’ O-1 Success Stories

Here are some recent success stories of how we creatively secured the O-1 visa for our clients in challenging situations: 1. A client who established a mid-infrared imaging microscope company got his O-1 visa approved after we ensured that the company’s bylaws removed him as a board member and established him as an employee in his position as President, while retaining majority ownership in the company.

2. A majority owner of an experiential design company successfully got his O-1 visa after providing documentation that the Board of Directors served as his supervisors and he

Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8

could be fired even though he was a co-owner.

3. A construction manager set up a company with a real estate agent to serve as the president and was able to successfully obtain his O-1 visa after proving that he was subject to the control of the company.

4. A graphics designer established her own design studio and worked with top museums and art institutes with her O-1 visa even though she was the majority owner and a board member.

5. A client who set up his own animation studio was able to secure gigs with some of top television networks and secure his O-1 after we drafted the intent letters

and crafted a detailed itinerary, showing there was bona-fide employment.

6. A global logistics executive secured his O-1 visa to work for a metal product company after we carefully explained how his extraordinary abilities and experience in logistics would be invaluable to the company.

7. A museum exhibition specialist wanted to work for a software developer company, which seemed unrelated at first glance. We crated creative arguments for how his extraordinary ability and background would be a great fit and also drafted the employment offer letter, job duties and business plan to support the O-1 petition.

Appendix: Sample Checklist of Exhibits to Prove Bona-Fide Employer

Company Corporate Governance Documents, including Articles of Incorporation, Employment Identification Number, and Business Licenses; Company Bylaws and Minutes (detailing the duties of company board members as well as executives);

Company Employment Offer to the Beneficiary, outlining compensation details and other terms of employment; Itineraries or Projects to be performed by the Beneficiary;

Contracts or Letters of Intent from clients or other employers (if agent sponsored);

U.S. Corporate Tax Returns or other tax documents; Payroll records;

Company Business Plan with projected financials;

ILT Magazine

Issue No.3

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Immigration Lawyers Toolbox Magazine

NOW OFFERING “OF COUNSEL” SERVICES

From Tsang & Associates, PLC

by JOSEPH TSANG, Esq.

T

Joseph Tsang, Esq.

JDTsang@TsangsLaw.com

ired of juggling cases with not enough staff and resources? Want to expand a practice area but not sure how to get started? Tsang & Associates is a full-service global firm over 35 years of immigration law expertise. Our team of legal experts and professionals are here to serve you and your clients by providing all of the resources you need behind the scenes to get where you want to be.

Why is This Service Amazing?

1. Reliable Partner

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This is a Sponsored Article

When you hire Tsang & Associates, you have full access to our team of lawyers, subject matter experts, paralegals, and more. We are ready to rise to the challenge and provide whatever services you need to win the case.

We are here to provide case strategy or consultations on challenging cases or a provide a second eye onready-tofile cases, as well as take on overflow cases that you want to keep but don’t have staffing levels or expertise. We can also share our expertise and train you and your staff on how to do a new case type. We will provide samples and provide guidance on how to expand your practice.

2. Maintain Client Satisfaction

Your client remains your client. We can work completely behind the scenes, or we can also face the client by using your company email. If we do a good job, you get all the credit and good will with the client. You also retain control over the case and make the final shots.

3. Affordable

Instead of maxing out the firm budget on new hires, you can hire an entire firm and utilize our resources for fraction of the cost1. Use our services when there is a temporary overflow of cases or when you need a senior partner to provide specific expertise on a case that requires extra attention.

We are flexible in creating customized plans and will work with you to figure out the best fit.

1 We charge less than 40% of the average cost for a case. Average costs are based on our firm’s average price estimates and may vary depending on the level of complexity and other factors.

Special Edition 2021 Why Are We Doing This?

We started out as a firm serving as the “back office” for other lawyers and law firms. Today, we are now a full-service firm but we want to honor our roots and continue serving the legal community. We are here to partner with like-minded law firms and attorneys who share the same passion to serve clients and adhere to the highest standard of excellence How It Works!

1. Let us know the need and we’ll assess if our firm is the right fit.

2. We’ll assemble a team of legal experts and professionals.

3. Provide a plan for execution and get started.

Pricing Contact us to learn more about our flexible pricing models and customized retainers. Given that we are already retained as counsel to many law firms, we can only take a few more partner firms at this time.

Examples of How We Work with Other Firms Every firm is different and has diverse needs, so our services are flexible and tailored to meet the unique needs of your firm. We’ve outlined below different ways we partner with firms and the types of services we offer.

1. Overflow: When you have a sudden overflow of cases but are maxed out on resources, our team can come in and do everything from preparing the attorney brief, assembling the case filing, and timely filing the case with USCIS. We can also communicate directly with the client through your company email. This is also a great option if you want to take on new cases but need extra hands.

Example of Services Include: • Handling multiple Request for Evidence (RFE), Notice of Intent to Deny (NOID), Motions and Appeals on tight deadlines

• Rush filings of I-485 applications because the priority date becomes current

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Issue No.3

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Immigration Lawyers Toolbox Magazine 2. Package Filing/Quality Control: When you are reasonably certain that your client has returned all pertinent information to you and that you are done with your case brief, we offer a comprehensive package filing service. We will physically build the case filing and check for all the dotted I’s and crossed T’s. We will then make sure that the case is filed on time.

This is also a great service for rush cases where you need the case filed on a time crunch.

Example of Services Include:

• Printing and filing multiple high volume 601(A) waiver cases

• Filing over 12 capsubject H-1B cases within 2 weeks

3. New Practice Area: When you want to expand your services into a new area of law but want us to handle it, this is the service for you. If you’re a family immigration firm but want to sign up business immigration cases from time to time, you can give us the cases you want us to handle and we’ll take of the entire case from start to finish. If we succeed, you get all the credit and can advertise new practice areas to your clients.

4. Strategy Session: This service is the most popular option for firms who have a difficult case, whether because it’s in an unfamiliar area of law or the case itself is complex. We’re happy to jump on a call for a quick brainstorm session or provide sample documents and checklists so that you can complete the case.

Example of Services Include:

• Preparing H-1B, L-1, O-1, and E-2s for attorneys who focus on family immigration cases

• Preparing 601(A) cases for attorneys who don’t have experience with waiver cases

Contact us at Info@TsangsLaw.com for more details.

48

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Example of Services Include:

• Dealing with complex H-1B, L-1, O-1, E-2 RFEs, NOID, or motions and appeals

• Preparing change of status from L-1 to O-1 “Self-Petition” case • Brainstorming job requirements for PERM cases

Immigration Lawyers Toolbox Magazine

DECRYPTING THE O-1 VISA FOR EXECUTIVES AND BUSINESS OWNERS U

Mitch Wexler, Esq.

MWexler@Fragomen.com

Sarah Hall, Esq.

SHall@Fragomen.com

by MITCH WEXLER, Esq. & SARAH HALL, Esq.

SCIS has established the O-1 visa for candidates with “extraordinary abilities” in a variety of fields and industries. As background, the O-1 visa category has two separate “sub-categories” under which a petitioner can file, largely dependent upon the nature of the job position which the applicant will fill.

The O-1A category is more suitable for applicants such as scientists, doctors, executives, and engineers. On the other hand, the O-1B category was designed for individuals in the arts, including chefs, actors, designers, producers, and more.

Both the O-1A and the O-1B categories require that the applicant demonstrate extraordinary achievements within their respective industry, though the nature of the evidence each applicant submits in support of this argument is unique and dictated by the industry norms.

Most often, we think of an O-1 visa as the appropriate pathway for work authorization for Nobel or Pulitzer Prize winners, as well as for high-profile actors, directors, models, and other celebrities.

However, the O-1 visa category is a broader category available to more individuals than just those of media fame and notoriety. In recent years, we have had great success in receiving O-1 approvals for C-level business executives filed as an O-1A Extraordinary Ability petition. For example, a C-level executive looking to

enter or continue working in the U.S. has several options for work authorization in the US, such as the L-1 or H-1B visas; however, the L-1 intracompany transferee requires the applicant to have previously worked at a qualifying petitioning company’s office abroad for 12 months out of the previous 36, and the H-1B visa must be applied for through the annual lottery which is subject to a cap on the number of issued visas. For these reasons, sponsoring companies may look for alternative options for their executives seeking work authorization in the US. O-1 Criteria for Business Executives

The O-1 visa can be a great option and valuable pathway for C-level executives to work in the US, provided they meet the high standards of this visa category. First, the applicant must have a sponsoring employer based in the United States; unfortunately, an applicant cannot directly self-sponsor their own O-1 visa without the existence of a US based employer. Further, if the applicant has not won an exceptional award such as a Nobel or Pulitzer Prize, then the individual must provide USCIS with proof of at least three of the following criteria: -

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Receipt of nationally and internationally recognized prizes or awards for excellence in the applicant’s field; Membership in associations in the applicant’s field that requires outstanding achievements to enter;

Special Edition 2021 Strategic Documentation to Demonstrate O-1 Applicant’s Extraordinary Abilities within Their Field

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Articles and press in professional or major trade publications, newspapers, or other major media about the applicant or their work; Original scientific, scholarly, or businessrelated contributions of major significance in the applicant’s field;

Authorship of articles in professional journals or other major media in the applicant’s field;

A high salary as compared to others in the applicant’s field;

Participation on a panel, or individually, as a judge of the work of others in the applicant’s field; and

Employment in a critical or essential capacity for distinguished organizations and establishments.

With the high caliber of criteria listed above, the O-1 is one of the most challenging, yet rewarding nonimmigrant visas – if approved.

Unlike the L-1 or H-1B visas, the O-1 can be renewed indefinitely in increments up to three years at a time, if the applicant can demonstrate the nature of the position has changed for the renewal.

In recent years, there has been a noticeable uptick in higher adjudication standards for O-1 visas. As a visa category that is evaluated in a highly subjective manner, it is imperative to employ strategic arguments and creatively provide detailed documentation to make a persuasive and compelling case. Thinking outside of the box allows counsel to tailor an O-1 petition specifically to an applicant, ensuring a bespoke level of service that can raise the chances of an approval. This is especially true for executives and managers whose documentation and evidence may not categorically fit in the neat boxes that the regulations require.

In cases where the evidence is more unique when compared to more standard O-1 visa applications, it is entirely possible to argue creatively that such documentation shows the profoundness and overall impact of the applicant’s work in their respective field.

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...if the applicant is on a board of directors for other companies, documentation from those board meetings can show that the applicant’s advice is used by others in the industry to develop their own business plans.

Often times, these higher-level executives are not running the dayto-day duties of their company; rather, these applicants distinguish themselves from their peers through the impact of their work as showcased through the success of their company. Thus, some of the more important strategic evidence we include when detailing the extraordinary abilities of these C-level executives includes objective, well-documented development and implementation of their business development strategies such as budgetary reports prepared by the applicant, PowerPoint presentations related to the growth of the company, press releases discussing the upcoming developments the company will seek in the future, etc. When filing an O-1 visa for business executives, it is crucial that the evidence we submit closely tie the applicant to the supporting documentation USCIS will review. When possible, we request that the applicant provide us with documentation which clearly states their name in the evidence so we can highlight the crucial role they have played with prior projects to USCIS.

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Immigration Lawyers Toolbox Magazine Further, if the applicant is on a board of directors for other companies, documentation from those board meetings can show that the applicant’s advice is used by others in the industry to develop their own business plans. Strategically picking out the necessary evidence is imperative in evidencing that the applicant has not only impacted their sponsoring company, but also their overall field or industry. The inclusion of corporate documents is a key factor in showing the USCIS the applicant’s crucial role in the company, and can prove to be the most challenging aspect of preparing an O-1 petition for business executives.

Once all the evidence has been obtained, we must then prove to the adjudicator through persuasive arguments in a detailed support letter that the documentation provided clearly and objectively corroborates the applicant’s extraordinary abilities in their respective field. The main question that needs to be answered: What makes the applicant a top businessman distinct from their peers? It is the marriage between the documents with the arguments in the support letter that creates a compelling and successful case.

Advisory Opinion Letter

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USCIS requires that each O-1| petition include an “advisory opinion letter” from the applicable industry union which oversees the applicant’s field of expertise.

However, no formal business union exists to issue these required advisory opinion letters for O-1 business executive applicants.

In the alternative, we seek a US based recommender who has worked closely with the O-1 applicant and can attest to the extraordinary nature of their ILT Magazine

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Renewing the O-1 Visa

past work in the industry. In the past, USCIS has accepted these US based recommendation letters as an alternative for applicants who do not have a formal union which regulates their particular field of work. Further, on the applicable I-129 forms, we indicate that no appropriate advisory opinion exists for the business executive applicant but that in the alternative we are submitting a recommendation letter from a US based individual.

Itinerary

In order to receive a three-year approval for an O-1 visa, the applicant must demonstrate that they will be engaged in business activities spanning for at least three years. Unlike the O-1B visa which requires a formal deal memo or itinerary to demonstrate three years of upcoming work, the O-1A visa for business executives is less stringent. Instead, we describe in the detailed support letter the upcoming projects and job duties which the business executive will perform in the upcoming three years, stating that given the robust nature of these projects it is required by the petitioner organization that the business executive be granted three years of work authorization upon the approval of the O-1 visa.

Many are under the belief that the O-1 visa can be renewed in only oneyear increments. However, with strategic planning between counsel and the petitioning organization, it is possible to renew the O-1 visa in three-year increments. Specifically, USCIS states that if the O-1 beneficiary’s role or job duties have changed since the initial O-1 visa was approved, then the petitioner can request that the O-1 visa be filed as an “amended” petition.

When an O-1 visa is extended and amended on the basis of the beneficiary’s updated job duties and role within the petitioning entity, USCIS typically grants a three-year approval period, rather than the standard oneyear approval window. However, counsel should be sure to complete the forms to reflect the petition is an amendment or USCIS will shorten the approval period to only one year.

Bridging the Path Between the O-1 Visa to an EB-1 Green Card

Once an applicant has obtained temporary work authorization in the US, the next step is often applying for a green card to obtain permanent residence. Depending on the nature of the applicant’s position within the sponsoring company, certain green card categories are more appropriate than others. For smaller companies, many executives have an ownership interest in their company; because of this conflict of interest, we typically recommend that the executive pursue the EB-1 route to a green card as opposed to the more often pursued PERM labor certification.

With PERM, any ownership interest that an executive may

Special Edition 2021 hold in the sponsoring company may be construed against the applicant, thus increasing the risk of the Department of Labor auditing or denying the PERM application.

Specifically, the Department of Labor may construe the executive’s ownership interest in the sponsoring company as an indication that a true job offer does not exist, and that a true, unbiased test of the labor market has not been conducted. Given the conflict of interest which arises when a business executive holds an ownership interest in the sponsoring company, we typically recommend they pursue permanent residency through the EB-1 green card application, in the alternative.

Why is the EB-1 green card category an attractive option for business executives? First, this green card category does not require the labor certification through the Department of Labor. Moreover, the EB-1 can also be premium processed for an extra fee, which requires the USCIS to adjudicate in 15 calendar days. Second, the EB-1 green card category does not require a U.S. employer to sponsor the petition so if needed, the executive can selfsponsor the green card application on an individual basis.

Further, the O-1 and the EB-1A require similar documentation, meaning applicants of an O-1

visa are often able to smoothly transition from an O-1 visa to an EB-1 green card without much additional effort. Given the similarities between the O-1 and EB-1 petitions, O-1 visa holders can transfer similar arguments and evidence to the subsequent EB-1 green card application.

While the EB-1A has a higher standard of adjudication than the O-1 and requires a heightened level of strategic arguments to demonstrate high achievement and a demonstrated need for the applicant, a successful O-1 visa can bridge the path to a successful EB-1A petition.

In conclusion, the O-1 visa category is not limited to applicants within the hard sciences and arts. With the use of creative strategies, we have received numerous O-1 approvals for C-level business executives who often have more unique evidence available. Further, with the limitations of other nonimmigrant work visa categories, the O-1 visa serves as a useful alternative for executives who are seeking work authorization in the US but who may not qualify for the more common L-1 or H-1B visas. Finally, if an executive receives an O-1 visa approval, counsel can have great success in obtaining a subsequent EB-1 green card approval, using much of the same evidence and arguments provided in the prior O-1 petition.

About the Authors Mitch Wexler is the Managing Partner of Fragomen’s Irvine, Los Angeles, and San Diego offices. His practice is quite diverse in that it is comprised of individual high net worth foreign nationals, start-up, mid-size, and large multinational companies with regard to all of their work visa/immigration matters.

Mitch’s clients are equally diverse across industry sectors including manufacturing, pharmaceutical, technology, construction, real estate development, entertainment and more. He is a California State Bar certified specialist in immigration and nationality law and also teaches a regular module on business and investment (including EB-5) immigration law at the University of California Irvine Law School. Mitch can be contacted at mwexler@fragomen.com

Sarah Hall is an Associate at Fragomen’s Irvine office, where she focuses on assisting clients with nonimmigrant and immigrant visa petitions and permanent residency applications. She manages the office’s Writing Team, which focuses on elite visa eligibility for the best and brightest. Sarah can be contacted at shall@fragomen.com Fragomen, with 50 offices and 4,500 employees worldwide, is the leading business immigration law firm in the world.

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Immigration Lawyers Toolbox Magazine

WHAT IS AN EB-5 DIRECT INVESTMENT & WHAT TO LOOK FOR: Considerations from a Registered Securities Broker What’s going on in EB-5?

by KURT REUSS, Founder of EB-5 Marketplace

Not since November 2019 has EB-5 seen so much monumental change. In June 2021, the Regional Center Program expired, and just prior to that, a court case declared the Modernization Rule invalid.

What does this mean for potential EB-5 investors? First, the EB-5 Direct Program, which is permanent, is the only game in town, and second, the investment amount has returned to $500,000 — for now.

What does a good EB-5 direct investment look like?

Kurt Reuss

Kreuss@EB5Marketplace.com

Since direct investments have comprised just a tiny fraction of EB-5 investing historically, many petitioners and even immigration lawyers were not aware of what to look for when evaluating a direct investment. The real opportunity with direct investing, I believe, is not in startups but in businesses that have been running successfully for a few years and are now preparing to grow.

As a registered securities broker who works closely with other EB-5 direct investment experts, I’m going to share several important considerations for you and your clients.

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The offering documents: brevity is often the soul of direct Businesses offering direct investments to one or two investors may find it cost prohibitive to provide a Private Placement Memorandum (PPM), such as you’d see with most regional center offerings.

That’s acceptable; you don’t typically need that higher level of disclosure when dealing with a small number of investors, as there are fewer possibilities to be addressed compared with a regional center investment that may have dozens of investors. Smaller direct investments can usually consolidate the necessary disclosures into a single long-form subscription agreement.

The business plan: look for a high degree of confidence that the jobs will be created

The Direct Program is different in many ways, in terms of structure and some requirements, from the Regional Center Program, and these differences are reflected in the business plan. The most important factor in the Direct Program, and thus in a business plan, is job creation.

Special Edition 2021 The now-expired Regional Center Program was popular because of the confidence people had in its prospects for job creation; in big construction projects, if the budget was spent, one could almost be assured of the necessary job creation. With direct investment, job creation is limited to an actual headcount of operational jobs — construction, indirect (supplier), and induced jobs (created by local spending) don’t count.

Thus, it’s imperative that a direct investment business has the necessary funding in place to hire the employees outlined in the business plan within two to three years of an investor’s approved I-526 petition.

Regarding employment duration, there is a common misconception that the full-time employment requirement means that jobs must last two years. Not so. There needs to be a good-faith intention to create full-time jobs (35-hour per week), and there needs to be a credible plan that supports the creation of the required jobs. But if unexpected circumstances result and some of those 10 employees are subsequently let go, USCIS may still approve a petition if the intent was genuine, regardless of how the market responds to the new business.

An investor’s place in line: earlier is often better in direct investments

In general, look for a business plan with sensible projections, good management, and an opportunity for growth where job creation appears imminent and where the investor is investing prior to the job creation.

There is an exception to this last point. As with regional center projects, direct investment businesses can also use bridge financing. Bridge financing can be either a loan or equity and must not last more than one year. Jobs created from bridge financing can later be claimed by EB-5 investors whose investment replaces the bridge capital.

When it comes to business viability, big regional center developments traditionally offered market feasibility reports as proof of their projections. With direct investments made into smaller businesses, business plans may hire a third-party due diligence firm to review the claims in its business plan to determine that a market for the services of the business exists, and that the job-creation expectations are credible.

An important element to be clear about is how job creation will be credited to EB-5 investors (when there is more than one).

The language in the subscription agreement should define how jobs will be allocated to investors.

In most cases, this is first-come, first-credited, which motivates investors to move more quickly, as getting credit for jobs 1–10 may be significantly safer than jobs 21–30.

This contrasts with a regional center project where we often advise investors that being a late subscriber in a regional center offering is often safer, as progress made in the project’s development is almost always positive.

Investor participation: debunking the ‘active management’ myth

Perhaps because most direct investments have been small, sole-proprietorship businesses, like a restaurant franchise, EB-5 stakeholders have long subscribed to the notion that a direct investment requires an investor to be involved in actively managing the business. This is simply not true.

Clients looking to make a $500,000 EB-5 investment?

With our investment options and due diligence, we can help them make an informed decision. Schedule a call to learn more.

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Immigration Lawyers Toolbox Magazine According to veteran immigration lawyer, and former Acting Director of USCIS, Robert Divine, the Immigration Service requirements for management of a direct investment are the same as for a regional center investment.

“The requirement in the statute to engage in the enterprise is the same in direct investment and a regional center investment; there is no difference,” Divine advises.

“Whatever was passable in the Regional Center Program is also passable in the Direct Program.

So language in the operating agreement, or whatever type of agreement for the enterprise, that the investor has the right to provide policy input is likely to be sufficient. It’s not an issue that the Immigration Service has chosen to make a big deal of.”

While passive management is acceptable from an immigrationcompliance point of view, investors may still want to be engaged in the business. EB-5 due diligence expert Rupy Cheema tells us, “To be prudent, an investor should have oversight over the business, which could be a seat on the board that meets quarterly and approves budget and reviews performance and operating results.”

Cheema also states that in a small-business, direct investment isn’t likely to have third-party oversight, such as a fund administrator, or audited financials; therefore, an investor should want the financial statements to be prepared by an external CPA firm.

With my company eb5Marketplace (which uses the due diligence of Rupy Cheema) investors who select an investment get a minimum of bi-annual updates on job-creation progress and other business updates. Look for some kind of similar independent auditing for any direct investment.

Direct investment returns are often commensurate with their risk

Equity investments in growing businesses offer opportunities for financial gain that just aren’t available with regional center offerings.

Regional center managers are often set up to fund big commercial real estate projects that produce lots of construction jobs. The opportunity for the job-creating entity is to get loans on more favorable terms than they can otherwise get from a traditional lender.

When you then factor in that the Manager of the new commercial enterprise needs to be compensated, and the fact that EB-5 capital comes in sporadically and can be hard to count on, regional center investments often offer investors little in the way of a financial return on their investment. This has been acceptable to many investors as the cost of getting their Green Cards.

These loans are often structured with repayment terms of five to seven years, barring a redeployment of the investor’s capital. The investor is therefore left with a very modest rate, often less than 1% annually, but a high probability of job creation.

Contrast this with a direct investment in a growth-stage company. These companies were not created with EB-5 in mind, but they have reached the point where they are ready to expand and hire more people. EB-5 as an immigration program was never a concern for these businesses; it is a happy coincidence that their growth is likely to create the jobs that EB-5 investors need. The business is looking for money to grow and EB-5 capital can therefore get the same risk/reward return that private-equity investors are receiving — but with the side benefit of producing Green Cards.

Owning a piece of a growing business at a time when many economists think the U.S economy is poised to thrive offers the real possibility that some investors will make more substantial returns than what regional center investments typically offered.

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Special Edition 2021 Redeployment: not a factor in direct investing With a true equity investment, a direct investor can maintain the investment as long as they wish — which, I might add, was probably the expectation of Congress when it conceived of the EB-5 program.

So there is no risk that your funds will be redeployed into another “atrisk” investment in order to satisfy USCIS rules.

Direct investing summary: back to basics Exit strategy: avoid looking like a loan USCIS requirements of a direct investment —a true equity investment made into the business that creates the jobs — demand that the terms of the investment cannot look like a loan.

Robert Divine cautions those who may want to circumvent this rule: “The more the arrangement looks like a loan with a fixed period and rate of return, the more risk of violating the prohibitive debt arrangement rules.” And if USCIS determines that such a violation has occurred, there is no recourse other than to revise the offering documents and start over with a new filing.

So how can investors avoid the appearance of a loan yet still have some assurance that they will see the return of their capital in a reasonable time? Making a successful financial investment, I advise, is the key to a good exit for investors; it’s always easier to sell shares in a successful and growing company than with one that is limping along.

Making an equity investment in a growing business can check all the boxes of the EB-5 program. Right now the EB-5 investment amount is $500,000. And only direct investing is available. It is the view of many EB-5 pundits that the government wants to raise the minimum investment amount substantially and soon. Some investors may wait for the return of the Regional Center Program, but there is no guarantee that they will still be able to invest at $500,000.

By making an informed investment in a growth-stage U.S. business, the investor has the potential to have their cake — at a lower price — and eat it too: clients can invest at the $500,000 level, have the opportunity to get Green Cards for themselves and their family, and build a potential nest egg.

Your clients should understand that a direct investment is a very viable option. If made wisely, such an investment can help build a growing U.S. business — and a foreign family’s dream.

Schedule a Call to find out how I can help you and your EB-5 investor clients: https://eb5marketplace. com/booking About the Author

Kurt Reuss is a registered securities broker working exclusively in EB-5 since 2013. He is the founder of eb5Marketplace, an online platform that helps investors choose an EB-5 investment — direct or regional center — with confidence.

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Immigration Lawyers Toolbox Magazine

O-1As FOR STARTUP FOUNDERS Without an official “startup visa” in the

United States yet, the O-1A category offers a great option for international founders to work at their startups—and offers a far less rigid alternative to the H-1B. In fact, the number of O-1A applications filed with U.S. Citizenship and Immigration Services (USCIS) has steadily increased during the past several years until COVID-19 hit last year.

Sophie Alcorn, Esq. Hello@Alcorn.Law

Unlike the H-1B, the O-1A is not subject to a cap or lottery, labor condition application, or rigid occupational categories. Although the eligibility requirements for an O-1A are more demanding than the H-1B, even individuals who are in the early stages of their career can qualify if they can show extraordinary ability in their field in their country. And the O-1A allows for unlimited extensions and offers a fairly quick process, particularly if the candidate is already in the United States.

Moreover, no minimum salary is required by the O-1A, which will be another benefit to that category given that the H-1B lottery is expected to be a wage-based selection process next year and includes the element of “ability to pay”. Many startups would be disadvantaged by a wage-based selection process for H-1Bs, particularly since equity or stock options in the company, bonuses, and other non-wage compensation given to founders cannot be included in wage calculations.

The key to a successful O-1A filing is to develop a relevant and creative strategy for demonstrating the startup founder’s abilities and achievements are extraordinary in their field of expertise in their home country or in the United States.

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by SOPHIE ALCORN, Esq.

Defining the field Strategically defining an O-1A candidate’s field of endeavor can make or break an O-1A petition. If the field is too broad, it will be difficult to make the case that the individual is extraordinary. The more narrow and specialized the field of endeavor is—even better if it’s a cross-section between two fields, such as data analysis and entrepreneurship—will increase the chances for approval. But also watch out that it’s not too narrow!

It’s like Goldilocks’ porridge.

The O-1A offers applicants wide flexibility—no specific areas or rigid occupational categories—in defining the startup founder’s niche to prove to USCIS that she or he is at the top of the field. The O-1A candidate should invest the time and effort to come up with a list of specialized skills and how those skills resulted in significant accomplishments.

Most USCIS adjudicators seem to be looking for O-1A beneficiaries that are anywhere within the top 1 to 20 percent of their field of endeavor—backed by strong evidence, of course. Most startup founders can easily be positioned within this wide range.

Special Edition 2021 Focusing on Accomplishments

private-sector salary information from companies such as glassdoor. com, indeed.com, and payscale. com, over government wage data to prove high remuneration.

Don’t let the description of the O-1A overwhelm the international startup founder. Many of the founders we’ve worked with are extremely humble and underestimate their accomplishments, but they are unmistakably extraordinary. We’ve even received approvals for O-1As even though the individual did not meet most of the major eligibility requirements, such as winning an international prize or award or writing articles that have been published in professional or major publications. Meeting three of the eight criteria is all that’s needed.

Remember, O-1A petitions must also include an advisory opinion from an American labor union (if there is one), trade or management organization, or peer group, stating that the candidate has achieved a reputation of extraordinary ability and because of that, there’s no objection to the candidate competing with Americans in the field. Given that most tech startups don’t have a labor union for their industry and if no relevant peer group exists, a waiver can be requested.

Most startup founders possess extraordinary abilities or have garnered significant achievements to get where they are that can qualify them for the O-1A. For example, winning nationally recognized prizes or awards for excellence could potentially include: ● Being selected by a panel of well-known experts to fill a coveted slot in a highly competitive accelerator program ● Winning a startup competition

● Landing venture capital funding or a government grant

● A patent that is being used by others

In a stronger overall application, adjudicators are more likely to go for unconventional evidence in some of the categories. Think creatively about how to meet the criteria. For example, many startup founders might be able to qualify for the judging-the-work-of-othersin-your-field prong if they’re making hiring decisions at their company. And remember, some of

the candidate’s accomplishments can be used to fulfill more than one O-1A criterion.

Assembling Evidence

USCIS adjudicators may not be familiar with the startup ecosystem, so providing clear explanations in addition to strong evidence that provides a compelling narrative is crucial. For example, you’ll need to spell out what’s considered a top compensation package for the founder of an early-stage startup or the selection criteria and the profiles of the individuals who are deciding who to accept for an accelerator program.

When possible, providing redundant evidence from different sources can be beneficial. Or the startup ecosystem, it can also be beneficial to provide

With the O-1A, the startup founder is on her or his way to qualifying for an EB-1A green card. If that’s the goal, the O-1A beneficiary should keep an eye out for opportunities that would help her or him meet the more stringent EB-1A criteria and continue to collect documentation along the way. Make sure founders know to either print or print to pdf any webpages that document their accomplishments with headers and footers that contain the URL and date. And suggest that they keep in touch with other experts in their field who could write them a letter of recommendation when the time comes.

About the Author

Sophie Alcorn is an immigration attorney who founded Alcorn Immigration Law in 2015. She is certified by the State Bar of California Board of Legal Specialization as a Specialist Attorney in Immigration and Nationality Law. Sophie writes a weekly immigration column for Tech Crunch and hosts a weekly podcast, “Immigration Law for Tech Startups.

ILT Magazine

Issue No.3

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Immigration Lawyers Toolbox Magazine

STAFFING AN IMMIGRATION LAW FIRM DURING AND AFTER COVID: How to Grow Your Practice with a Hybrid Virtual & In-Person Staffing Model

by RAFAEL PICHARDO, Esq., CEO of Pichardo Immigration Paralegals

Rafael Pichardo, Esq.

Rafael@PichardoParalegals.com

When I first started my practice in 2011 I soon realized that being a solo attorney simply would not work in the long-term. I knew pretty quickly that I wanted to build a firm, in other words a business, that could grow and better serve my clients and help me achieve my goals.

I visited the Dominican Republic, one of the key business process outsourcing locations in Latin America and saw how many call centers and outsourced services providers there were. But none of them actually served immigration attorneys or had expertise in the area.

The solution I realized was not to stop hiring or to stop growing or to stop improving my business. Instead I figured out that I needed the same quality staff at a lower cost. That idea came to me when

It has allowed me to scale my practice much faster than I would have been able to if I had only continued to hire U.S.- based staff. A trained paralegal with a Dominican JD/masters degree costs a third of what an entry level paralegal does in the United States. In fact, during the pandemic we hired even more assistants in order to fill the needs of our clients.

The first step in that process was to hire someone to assist me. That was a tough, yet necessary, decision because without assistance there is no way to grow a viable legal service business. I then hired a few more assistants and paralegals and an associate or two. That worked well up to a certain point. I realized that while I was growing my business the costs of doing so left me with little, and at times, no profit.

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So I decided to start my own. That business, called Pichardo Immigration Paralegals, was launched in 2016 and now has 8 full time employees - virtual paralegals and legal assistants based out of a secured location in Santiago Dominican Republic.

Special Edition 2021 allows us to on-board new staff within 2-3 weeks depending on the needs of your firm.

I now offer this service to my fellow immigration attorneys who because of the pandemic realize that their clients can be equally served with a dedicated virtual paralegal or assistant. We offer both legal assistants and paralegals that are trained in serving immigration law offices.

Our training in US immigration law is comprehensive and targeted to the needs of an immigration law firm. We currently have staff specializing in removal defense, waiver, family-based petitions, naturalizations, and related processes. And our hiring process

At my firm, we have two dedicated legal assistants who answer phones, perform data entry, and manage our attorneys calendars. They also do preliminary intakes for new clients.

Our paralegals do everything your in-office paralegal can do with the exception of printing forms. They meet virtually with clients and draft forms, assemble documents, and prepare filings for attorney reviews. Our removal defense paralegals perform filings with EOIR and related agencies as well as help manage our EOIR calendar.

All of our staff is bilingual in English and Spanish and we offer on-going training to help our assistants and paralegals integrate into your business. This philosophy of integration within your law

firm is what distinguishes us from other providers who offer contract based, or project-based, virtual assistants/ paralegals.

Unfortunately, the nature of the practice of law requires lawyers to be more cautious and careful about who they share confidential information with. That is why our staff work from a secured facility following industry standards for securing data. This includes video monitoring and end-point device management of all equipment used by our staff.

I hope that other immigration attorneys will see the value of adding remote staff to their existing service delivery models. If there are any questions about our service I am happy to answer your questions. Please see our website www.pichardoparalegals.com for more information. Or contact me at Rafael@pichardoparalegals.com.

ILT Magazine

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Immigration Lawyers Toolbox Magazine

O-1A VISAS IN GAMING:

From the Programmer to the Athlete

by BENJAMIN LAU, Esq. & ZAIN ABIDI, Esq.

Benjamin Lau, Esq.

Benjamin.Lau@JacksonLewis.com

Zain Abidi, Esq.

Zain.Abidi@JacksonLewis.com

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In

the competitive global video game industry, the United States remains at the forefront despite the recent rise of foreign video game companies such as Tencent.

Some of the most prestigious studios are located in the United States, and the battle between studios for elite talent to work on their breakout productions is fierce.

Studios are forced to look outside the United States to secure talent, and their recruiters need the tools to sift through resumes of not only individuals who are qualified, but who qualify for a U.S. work visa.

One of the most common tools used by video game companies is the O-1 visa. By definition, the O-1 visa is a nonimmigrant visa for individuals that possess extraordinary ability in the sciences, arts, education, business, or athletics.

This article discusses the three types of professions within the video game field that fall within the O-1A visa category: programmers, producers, and athletes.

We will cover the difficulties with these cases and how to develop a strategy to build a winning case. Not discussed are the simple cases for winners of major awards in the field or widely known industry leaders. Many lesser-known positions that may not immediately come to mind can qualify for the O-1A visa.

Issue No . 3

Programmers Programmers form the backbone of video game studios, and their contributions are often overlooked by industry outsiders. Programmers includes a wide range of positions, including graphics programmers, tools programmers, and game engine programmers. These are positions that allow the artists and game designers to take full advantage of a game system’s hardware, as well as any physics or graphics improvements made possible by a new game engine.

With the rapid growth of video game studios, programmers have become scarce and are highly coveted by studios.

While the H-1B visa is generally the most logical option, studios do not want to deal with the uncertainty of the H-1B lottery or having to wait months for the opportunity to bring a new programmer on-board. The O-1A visa provides an additional option for securing leading talent in the field. The difficulty with programmer O-1A visas is that programmers usually are not on the receiving end of press or fanfare, are not recognized at award programs, and often do not write in trade publications. While this may make it seem like a programmer O-1 is impossible, successful strategies include:

Special Edition 2021 Significant Compensation

Scholarly Articles

While programmers in the video game field may be able to command a premium, this is not true for all computer programmers in the United States. For the purpose of the O-1, the candidate is compared to all programmers in the United States. For most studios, their programmers will be earning a salary in the 25th percentile when compared to the national salary earned by the top programmers in the United States. This fact combined with a testimonial letter confirming the proposed salary is among the top in the field may be enough to satisfy this criteria.

While trade publications may not discuss a programmer by name, a candidate may have authored articles that have been published in trade or technical publications.

Instead of being featured in publications like Kotaku or IGN, programmers gravitate toward professional publications by ACM SIGGRAPH. In addition to having articles published in professional association publications, the candidate may have written a tutorial that was featured in an online forum or on the website for a particular software tool. These also can be used as scholarly articles, so long as you provide supporting documents demonstrating that there is an application process.

Additionally, any publication included must provide background information about the scholarly nature of the publication. This can be in the form of readership information, the reputation of the publication in the field, and the distinguished nature of the editorial board. For a lesser-known publication, expert testimonials can bolster the assertion that the publication in question is scholarly and is viewed as a reference for others in the field.

With respect to the salary survey, it is important to remember to use a national salary survey, like the Bureau of Labor Statistics National Wage Survey. USCIS has taken the position that localized salary surveys, like the Foreign Labor Certification Online Wage Library, is insufficient evidence to show the person commands a high salary in relation to their peers in the field.

Other surveys, such as Glassdoor, Salary.com, or Payscale, should include information regarding the survey method used by the company to generate that salary survey.

Critical Role with Distinguished Organization

The O-1A does not require proof that the candidate will perform a critical role for a distinguished organization in the future.

Demonstrating the candidate has previously performed in a critical role with a distinguished organization is enough. The key is to find a specific contribution the candidate made, tie that contribution to the success of the organization’s production, and then tie the success of the production

to the success of the studio. Since most studios work on one game at a time, it is generally easy to connect the success of a game to the success of a studio.

To prove this criteria, include expert letters confirming the specific work the candidate did, using detailed technical descriptions of what they did, how it is different from what is currently being used, and how it impacted the production overall.

If you can tie the programmer’s contribution to a specific visual element of the game, that is even better. An example of this would be if the programmer developed a new strategy for using the game’s physics engine to better use particle physics strategies to better represent smoke and fire, and this change resulted in a widely discussed article on how the smoke and fire in the game is realistic and lifelike. Providing a testimonial letter on the significance of the programmer’s technical achievement, providing the USCIS officer a straight connection from the programmer to the success of the production, allows the USCIS officer to better understand the programmer’s importance to the success of the production, and the studio, overall.

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Producers

Esport Athletes

Producers are treated like business O-1As; focus on their business contributions and how those contributions directly impact the success of a production. Since producers tend to be more highprofile individuals, they are interviewed by leading trade publications like Kotaku or IGN. Their higher-profile position also generally results in their serving on professional associations and being named on awards that productions have received.

One of the hottest topics in U.S. immigration over the last decade is the rise of the esport athlete.

While esport athletes have been popular in other countries, such as South Korea, the profession recently arrived in the United States. It has taken USCIS several years to recognize these individuals are athletes, just like basketball or football players. While an esport athlete O-1 is fairly straightforward, the most difficult decision comes at the start of the process: determining if the O-1A or P-1 (for athletes, or other entertainers, and their coaches or support staff) is the appropriate visa category. Each has its pros and cons, and those must be weighed at the beginning, when evaluating the candidate for a potential visa.

For the lesser-known producer, focus on the candidate’s specific contributions and narrow down what is so special about the candidate that made the company want to hire them. When working on a producer O-1, it is important to highlight their work in the video game field and how the candidate contributes throughout the creative process. It is necessary to demonstrate they contribute more to the process than simply managing resources.

Include testimonial letters highlighting their contributions throughout the production process and point to specific contributions where their extraordinary ability impacted the production as a whole.

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Issue No . 3

While the P-1 has the benefit of being easier to qualify for and having a maximum duration of 5 years, the scope of the P-1 athlete’s duties in the United States is greatly limited.

The athlete is allowed to compete in events, but is limited in their ability to promote endorsements, stream content, and earn revenue outside of official team-sanctioned activities.

The O-1 gives the athlete more options with respect to endorsements and individual activities. This also gives esport teams the ability to transition their athletes to other revenuegenerating positions, such as a streamer, should they conclude their time as a competitor on the team. This flexibility does not exist for the P-1, which is available only to athletes who are actually competing in events in the United States. This flexibility makes the O-1 both better for the athlete and the team, giving them both more flexibility than the P-1 allows by itself.

Consultation

Some common organizations who can provide the required peer-group letter include: International Game Developers Association (IGDA), The Association of Interactive Arts and Sciences (AIAS), and the Visual Effects Society (VSA). Should these organizations be unable to provide the required letter, explore the possibility of using an academic or other expert in the field who can attest to the candidate’s extraordinary ability. This expert can be a professor, an editor for a trade publication, a board member for a professional association, or any other individual who can be recognized as an authority in the field. Many credential evaluation services also provide the option of reaching out to their network of professors and asking if any are willing to provide the peer advisory letter.

Special Edition 2021 About the Authors

Conclusion As the video game industry continues to expand, the need to highly qualified individuals to fuel that expansion will continue.

By offering clients an additional visa possibility, you allow their recruiters to expand the company’s search from a national to international level.

Benjamin C. Lau is an associate in the Los Angeles, California, office of Jackson Lewis P.C. where he represents employers in corporate immigration law matters, including global mobility issues and developing internal immigration policies. Ben focuses his practice on inbound immigration within the entertainment and technology fields, including film, television, visual effects, video games, and other interactive multimedia entertainment productions. Ben assists these high-value employees in navigating the complexities of US immigration law, including international travel and long-term immigration planning.

Zain Abidi is an associate in the Los Angeles, California office of Jackson Lewis P.C. His practice is focused exclusively on federal immigration cases. He has experience working with large corporations, startups, and high-net-worth individuals in a variety of employment-based and investment-based immigration matters. Prior to joining Jackson Lewis, Zain worked at boutique immigration practices in both Los Angeles and Miami where he worked with clients ranging from IT consulting companies to investors from the MENA region, Latin America, and Asia. Zain’s practice focuses on clients in Tech, Manufacturing, and Finance.

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Immigration Lawyers Toolbox Magazine

THE FRANCHISE VISA M

by PATRICK FINDARO, Managing Partner of Visa Franchise

any clients outside of the US have a hard time figuring out what investment vehicle to use for getting an E-2 Visa. We have made it easy by doing the homework for them and finding the best franchises eligible for U.S. investor visas.

While obtaining an E-2 visa is possible through a startup or buying a business, we recommend first investigating the franchise option. It is easier to create a start up or buy a business if you are already residing in the U.S.

Patrick Findaro

Info@VisaFranchise.com

According to the Harvard Business Review, its takes one to two years to buy a business. It is also recommended that you allocate 12 hours to the search process daily.

Although 55% of billion-dollar startups have an immigrant founder, all of these immigrant were already residing in the U.S. as students or employees of U.S. companies. It is difficult to ‘parachute’ into the highly competitive U.S. market and create a successful business.

Working with Visa Franchise, the process of finding, analyzing and buying a franchise should take only three months.

This process is fast tracked given Visa Franchise’s deep franchise industry relationship and data analyzed and collected over many years.

Here are some of the pros and cons of owning a franchise for your E-2 visa: Pros: • Initial & ongoing support from Franchisor

• Established business model built to ramp up • Business functions provided by Franchisor o o o o

Cons: • Costs gaining

negotiating with suppliers research & development market research real estate negotiations associated franchise

with rights

• Time it takes to open the business and break even • Restrictions by

imposed Franchisor

• Some franchises like Subway, McDonalds and Chick-Fil-A do not accept E-2 visa candidates

What are popular E-2 visa franchise industries?

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This is a Sponsored Article

With roughly 70% of franchises eligible for the E-2 visa, there are 1,500+ options to explore for your E-2 visa. The main industries to consider especially in light of the recent pandemic are:

Special Edition 2021 • Fast Food: Healthy Fast Food and Take Out/ Delivery

Business Summary

• Pet Care: Pet Grooming and Day Care • Real Estate: Property Management

• Business Services: Insurance Services and Tax Services • Education: School Reinforcement and Child Care • Health: Senior Home Care and Urgent Care • Cleaning: Commercial Cleaning Services and Maintenance & Repair

E-2 Visa Case Study

1) Property Management Southern California

in

Investment Amount

$110,000

Investment Horizon

5+ years

% Ownership

100%

1st year - 60 hours a week 2nd year - 50 hours a week 3rd year and beyond - ~45 hours a week

Time Commitment New or Existing Unit

New

Job Count

Three W-2 employess

Estimated Annual Return on Investment

100% +

More than 400 E-2 visa investors who have found great value from Visa Franchise’s services

Feel free to reach us at info@ visafranchise.com or 1-888-5507556.

2) Services Business in South Florida The franchisor partially owns a minority non-controlling stake in the E-2 visa business and supports the day-to-day operations. The E-2 visa investor is more focused on the strategy and finances of the service routes. The investor did not have an E-2 visa eligible passport, so he acquired a Grenada passport by investing $220,000 in a government approved real estate project in Grenada.

Business Summary

Visa Category

E-2 Visa

% Ownership

51%

Investment Amount Investment Horizon Time Commitment

New or Existing Unit Job Count

Estimated Annual Return on Investment

$220,000 5+ years

Semi-Absentee

Purchased existing service contracts Two W-2 employees and Five 1099 contractors 8-12 %

How to get started?

The real estate property management franchise has over 200 units located through the United States. They helped our E-2 visa client start up the business from zero and provide ongoing marketing and systems support since 2017. Our client manages over 300 properties across LA county and plans to grow further.

Clients can apply today to be a Visa Franchise here.

There are many free resources to support your client’s research and even franchise brokers who will not charge you a fee. However, many E-2 visa investors appreciate working with Visa Franchise as they can explore ANY franchise available (over 2,000) not just a network of ~400 franchises that compensate franchise brokers.

About the Author As Managing Partner of Visa Franchise, Patrick Findaro oversees sales, marketing, and strategic relationships for Visa Franchise.

Patrick’s experience with franchises and investor visas adds significant value to foreign nationals seeking investments in the United States. Patrick and his team manage an otherwise onerous process of immigrating through investment by partnering with trusted advisors and established franchisors.

Moreover, his experience in advising high-net worth individuals on an array of investments enables Patrick to provide informative market & financial analysis for prospective franchisees.

Previous positions have included Area Director/ Partner at LCR Capital (private equity firm), Client Services Director at Frontier Strategy Group (emerging markets consulting) and Analyst at JPMorgan. After growing up in Washington D.C., Patrick graduated from Colby College in International Economic Policy. Through extensive studies in Brazil and Argentina, Pat has mastered both a fluency in Portuguese and working knowledge of Spanish.

ILT Magazine

Issue No.3

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Immigration Lawyers Toolbox Magazine

ORIGINAL CONTRIBUTIONS OF MAJOR SIGNIFICANCE: Properly Understanding and Documenting a Successful O-1A

by ANDREW WILSON, Esq.

I

Andrew Wilson, Esq. AWilson@Lippes.com

like to start at the beginning. Every time. Skipping important steps increases the risk of marginalizing an important foundational piece for any process. This explains my affinity for legendary college basketball coach John Wooden. He won 10 NCAA championships in 12 years with UCLA, and yet he started the first practice of every season the same way— “We will begin by learning how to tie our shoes.”

My beginning for any O-1A filing is always reading USCIS Policy Manual, Chapter 4 – Burden and Standards of Proof, Sections A & B. This is me “tying my shoes” before evaluating an individual’s eligibility under applicable O-1A criteria. This section of the USCIS Policy Manual reads: A. Burden of Proof

The burden of proof to establish eligibility for an immigrant benefit always falls solely on the benefit requestor. The burden of proof never shifts to USCIS. (See 8 USC §1361) B. Standard of Proof

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Issue No . 3

The standard of proof is different than the burden of proof. The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought.

These are simple concepts, but ones that are not always properly appreciated by immigration attorneys when planning and organizing an O-1A filing. This is particularly true when documenting eligibility under 8 CFR 214.2 (o)(3)(iii) (B)(5)—”Evidence of the beneficiary’s original scientific, scholarly, or businessrelated contributions of major significance in the field.”

Original contributions of major significance should not be viewed as just one of the criteria we try and hit to reach at least the required three. It is so much more important to the entire O-1A presentation, especially for cases in the sciences. It is the foundation for the entire case, and too many O-1As are tripped up by failing to properly document this critical criterion.

“

...we should interpret O-1a eligibility as requiring “Evidence of the beneficiary’s original scientific, scholarly, or business-related contributions of major significance in the field”, and at least two (2) additional criteria that relate to the individual’s original contributions of major significance.

Special Edition 2021 Not All O-1A Criteria Are Created Equal Assuming the individual does not possess a Nobel prize, the majority of O-1A cases we encounter in the sciences require us to meet the burden of documenting eligibility under at least three (3) criteria from 8 CFR 214.2 (o)(3)(iii)(B).

But all of these criteria are not created equal. One criterion stands out from the rest and requires special attention. In reality, we should interpret O-1A eligibility as requiring “Evidence of the beneficiary’s original scientific, scholarly, or business-related contributions of major significance in the field”, and at least two (2) additional criteria that relate to the individual’s original contributions of major significance. Think of an O-1A as a tree and original contributions of major significance as the trunk of that tree. All other criteria are branches that should stem out from that base.

It makes sense that this criterion carries more weight than others.

Although Kazarian’s final merits analysis technically does not apply to O-1A filings, we all know that the inherent “what makes you so special” analysis is part of the adjudication process. Even beyond meeting three criteria, USCIS still applies the totality of the evidence review to determine if the individual has sustained national or international acclaim and is one of the small percentage who have arisen to the very top of his or her field. Why then would we expect USCIS to approve an O-1A if we have not clearly and thoroughly documented the importance of someone’s work within their field?

Also, without proving an individual’s original contributions of major significance, all other

documentation presented to meet other criteria will appear weak.

USCIS may issue an RFE with confounding ultra vires rules to undermine the evidence provided to meet other criteria because what was provided to show original contributions was deficient.

“

...Simply describing the person’s work is not going to cut it.

Remember, do not mistake activity for achievement.

Never Mistake Activity for Achievement—Properly Meeting Your Burden of Documenting Original Contributions of Major Significance In addition to always starting from the beginning, John Wooden is known for saying “Never mistake activity for achievement”.

This sentiment can be applied to analyzing and properly documenting an individual’s original contributions of major significance.

The criterion calls for evidence of the beneficiary’s original scientific, scholarly, or businessrelated contributions of major significance in the field. Do not mistake activity for achievement when meeting this criterion.

Just because an individual has completed research and authored articles, does not mean they have original contributions of major significance. This is not res ipsa loquitor where research findings and published articles speak for themselves, especially when USCIS is already skeptical about the merit of many journals these days.

We must flesh out the importance of the research, how it is different than previous research, and how is it being applied in the field. And this all needs to be presented in language and concepts that the USCIS adjudicator can understand.

If you cannot explain the individual’s contributions of major significance in simple terms to a colleague, you likely have not met your burden within your O-1A presentation.

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One common strategy to document original contributions of major significance is through reference letters from experts in the field. These expert opinion letters are critical to elucidate the importance of the O-1A applicant’s contributions and to provide context for the USCIS adjudicator to understand the significance or weight of the accomplishments. If used properly, these letters can do much of the heavy lifting in proving original contributions under the preponderance of the evidence standard. If completed on only a cursory level, these letters can do serious damage to the overall O-1A filing.

I see too many reference letters for an O-1A filing that do not address what USCIS wants to see to confirm original contributions of major significance. In many cases, the letters offer a generic parroting of the individual’s CV, without providing any specific examples of the importance of the work. Simply describing the person’s work is not going to cut it. Remember, do not mistake activity for achievement.

Poorly drafted reference letters may lead to a common RFE refrain:

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“However, the letters lack detail to show the beneficiary’s work has changed the field such that it may be considered to have had a major impact.”

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Issue No . 3

Reference letters need to be specific and should relate to and dovetail with other independent evidence included with the O-1A submission.

Each criterion is not a separate, isolated silo. Everything should flow and run together starting with original contributions of major significance. For example, one can confirm that the contributions were so original and important that they led to publications in journals with a high impact factor. You can point out that the contributions were so important that they received separate media attention or that they led to filling a critical role at an organization with a distinguished reputation.

In simplest terms, the utility of reference letters must be measured against how they provide answers to these key questions:

• What is the subject matter of research/work in the field?

• How is it different/better than previous research?

• Why is it so important?

• How is it being used by other researchers in the field?

• What real world applications does it have and how has it improved those applications?

For example, I recall one reference letter for a case that went into detail about the individual’s research, how it was conducted and the overall results. It was all very scientific, and color me dense, but I had no idea what it meant. I followed up and asked two simple questions:  So why is this important?  What impact has it had on your field?

Beyond providing some specific details to answer those two questions, I also asked the letter writer to conceptualize the importance of the work in terms that anyone could understand. I thought the response was perfect:

“In conclusion, what is more valuable and significant than time? What is more significant than discovering more and improved drugs for complex cancer treatment in a fraction of the time? When it comes to the perpetual race to develop better drugs for a variety of diseases including cancer, what if we could accomplish in days what it used to take us years? That is the significance of Dr. ______’s research.”

Special Edition 2021 The impact of this individual’s research was not obvious, and USCIS would never have understood it in these terms without this simple explanation. The science behind the research is important, but it is often complicated and beyond our comprehension. It is not enough to just throw out scientific terms and technical research results. The research and contributions need to be broken down into easy to understand concepts.

USCIS Must Give Proper Weight to Reference Letters

If you have well-presented expert reference letters that provide specific examples of the individual’s original contributions of major significance, it is then important to not allow USCIS to improperly discount those letters.

USCIS is required to give the proper weight to expert opinions as reliable, relevant and probative. Case law supporting the authoritative weight of expert opinions includes:

Matter of Skirball Cultural Center (25 I&N Dec. 799, at 805–06 (May 15, 2012)): In the Skirball case, the AAO noted that USCIS had not questioned the experts’ credentials, did not take issue with the experts’ demonstrated knowledge of the beneficiaries’ skills and history of the relevant musical genres, and did not otherwise state a reason to doubt the veracity of

their testimony, therefore the letters had to be considered.

The AAO noted that the expert testimony provided in the record appeared to be reliable, relevant, and probative as to the specific facts in issue, and therefore could not be dismissed.

The decision reads “USCIS may reject an expert opinion letter, or give it less weight, if it is not in accord with other information in the record or if it is in any way questionable.... In the present matter, the director did not question the credentials of the experts, take issue with their knowledge of the group’s musical skills, or otherwise find reason to doubt the veracity of their testimony. The AAO finds the uncontroverted testimony to be reliable, relevant and probative as to the specific facts in issue. Accordingly, the expert testimony satisfies the evidentiary requirement.” In a case where the RFE cites no contradictory evidence in the record, nor offers any factual basis for challenging the credibility, expertise or knowledge on the part of the initial expert witnesses, the expert testimony evidence must be considered along with other evidence in the record.1

The Federal Rules of Evidence and USCIS Adjudicators Field Manual (AFM) also confirm that USCIS is required to give the proper weight to expert opinions as reliable, relevant and probative. The AFM reads: “Generally, any evidence that would be admissible under the Federal Rules of Evidence should be admitted in administrative proceedings. But so also, generally, should any oral or documentary evidence that is relevant and material be accepted into the administrative record.

This means that a particular piece of evidence must have a tendency (no matter how small) to either prove or disprove a fact that has a bearing on the issue at hand (materiality).

Despite the relatively broad admissibility of evidence in an administrative proceeding, you should familiarize yourself with the rules of evidence relating to these proceedings.” AFM Ch. 11.1(a) (emphasis added)

In addition, the AFM reads:

“If you decide that the statement or testimony of a petitioner or applicant, or of any other witness, is not credible, your written decision should indicate this conclusion.”2

1 See also: Failure to consider expert testimony and/or affidavits is a violation of due process. Tun v. Gonzales, 485 F.3d 1014 (8th Cir. 2007); Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538–40 (7th Cir. 2005); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056–58 (9th Cir. 2005); McDonald v. Gonzales, 400 F.3d 684,687–88 (9th Cir. 2005). Unchallenged expert testimony cannot be rejected outright. Banks v. Gonzales, 453 F.3d 449, 453–54 (7th Cir. 2006). The determination of the credibility of documentary evidence should be the same as the determination of the credibility of testimony and therefore, an adverse decision must be based on “specific, cogent reasons that bear legitimate nexus to the finding.” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000).

2 AFM Ch. 11.1(l)

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Immigration Lawyers Toolbox Magazine The AFM specifically notes that it is generally not enough for the adjudicator to simply say that the witness is not credible; rather the “decision should give the specific reason or reasons for [the] conclusion, and refer to the elements of the record that support the conclusion.”

Conclusion

We often grumble about an RFE wondering why the USCIS adjudicator “doesn’t get it”. In some cases, it is because we did not properly give it to them. The burden is not on USCIS to get it, the burden is on us to give it to them in a way that confirms the individual’s O-1A eligibility under the preponderance of the evidence standard of review.

Filing an O-1A package is not a paper dump of articles, reference letters and employer literature. It is connecting the dots, doing the dirty work to make the complicated more understandable and presenting a package that does not inappropriately shift the burden to USCIS to fill in any gaps.

In bullet format, I then methodically outline these key points:

In many O-1A cases, that burden starts with proving the individual’s original contributions of major significance. I do not want the O-1A brief to be a mystery where the adjudicator is forced to wait until end to see if the individual qualifies.

I like to make that clear right in the beginning in bullet format with specific details about the individual’s original contributions of major significance.

At the beginning and end of any O-1A brief, I like to have a section that reads: “As verified in all of the objective evidence provided in this O-1A filing, the impact Dr. ____’s original contributions of major significance have had on his field and the acclaim he enjoys is confirmed by these independently verified facts:”

• Defining the research/work field • Outlining the specific research/work activities • Confirming how the research/work is original and different from previous research/work • Explaining why that research/work is important • Identifying how the research/work is applied in the field • Connecting the evidence of original contributions of major significance to other criteria and how evidence from each criterion relate to and support one another

My approach to O-1As is born from constantly going back to the beginning and formulating strategies beyond the concept of just meeting three criteria under 8 CFR 214.2 (o)(3)(iii)(B). I hope to soon be at the point that John Wooden describes as “It’s what you learn after you know it all that counts.”

About the Author:

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Andrew M. Wilson is a Partner and Immigration Practice Group Co-Leader with Lippes Mathias Wexler Friedman LLP. He is listed in Best Lawyers in America for Immigration Law, the International Who’s Who for Corporate Immigration Law, the International Who’s Who of Business Lawyers, and New York Super Lawyers—Upstate. He has been named Buffalo Immigration Law “Lawyer of the Year” by Best Lawyers in 2013, 2018, and 2021. He currently serves as an AILA ILT Magazine

Issue No . 3

Local CBP Liaison and has also been active in SHRM as a Panel Member on its Global Special Expertise Panel and Corporate Social Responsibility Special Expertise Panel.

Rather than taking a transactional approach, Andrew focuses on building long-lasting relationships with clients as a trusted advisor. He represents companies, major league sports teams, and individuals in all areas of immigration law.

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Immigration Lawyers Toolbox Magazine

O-1A EXTENSIONS:

Avoid Pitfall with these Best Practices You

remember that O-1A client from years ago? They’re back to extend their status. The client was ecstatic when you got the initial O-1A approval and you’d hate to disappoint now.

Regardless of how strong the initial O-1 petition was, the extension can be yet another opportunity for things to go off track.

Savvy immigration lawyers know how to avoid potential pitfalls in this situation.

Taymoor M. Pilehvar, Esq. Taymoor@Pilehvar.com

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Hopefully the client(s) came to you well before the expiration of the current validity period. But they’ll be pleased to know that O-1As benefit from an automatic extension of their work authorization while a timely filed extension petition is pending. This provision is in 8 CFR § 274a.12(b)(20) and authorizes the beneficiary to continue employment with the same employer for a period up to 240 days from the date their current status expires. This automatic extension is only for working and does not provide advance parole for the client to travel while the extension is pending. Further, if the extension is denied during the 240-day period the work authorization stops.

Issue No . 3

by TAYMOOR M. PILEHVAR, Esq.

Review the employment offer(s) for the requested extension period and determine what validity period to request. Keep in mind that O-1 extensions are typically only granted in one-year increments. In these cases, there is no need for a new consultation letter since the beneficiary is merely continuing an event or activity. However, if the new contract with the employer is for new events or activities then the USCIS can approve the extension petition with a three-year validity period—but they are not required to do so. If they are not satisfied that the extension is for a new event or activities they will issue an RFE advising that only a 1-year extension is available for continuations of the same activity. The response should include evidence distinguishing the new activities from those in the previous petition. Also, extension petitions requesting more than another year should include a new consultation letter.

Special Edition 2021

Best practice is to include evidence of the beneficiary’s new accomplishments with the extension petition.

If the client has not achieved any new accomplishments then the lawyer will have to rely on the client’s pre-existing accomplishments and the provision in 8 CFR § 214.2(o) (11), which states “supporting documents are not required unless requested by the Director.” This is easier in practice with O-1As than with O-1Bs, because the latter’s evidentiary criteria involve future looking aspects such as “will perform services as a lead or starting participant,” whereas the O-1A’s evidentiary criterion are backwards looking. But evidence of new accomplishments is recommended if possible.

The USCIS now gives deference to prior approvals as long as the extension involves the same petitioner, beneficiary, and underlying facts.

This policy reversion occurred in April 2021 and is now reflected in the USCIS Policy Manual [2 USCIS-PM A.4].

Rely on this policy with caution because the adjudicators can still deny extensions despite previous approvals in cases where they

determine that the previous petition was granted in error, where a material change has occurred, or where new material information adversely impacts eligibility (even publicly available info). This could be triggered if the adjudicator thinks the previous approval wasn’t adequately supported by the evidence or if the adjudicator finds information through government records or a google search that contradicts anything in the petition. It also might be triggered by a substantial change in job title, duties, location, pay, etc. If the case might be affected by any of those conditions then it would especially benefit the client to include evidence of new accomplishments with the extension petition.

Otherwise the RFE response may be the only opportunity to present such evidence.

In addition to proving basic eligibility for O-1A status, extension petitions also require evidence that the beneficiary maintained their nonimmigrant status. This means they only worked for their petitioner and didn’t do anything that could render them inadmissible. Typically, this is satisfied by filing the beneficiary’s taxes, W-2s, or paystubs from the previous period of O-1 status to show that their U.S. income is from their O-1 petitioner. If the beneficiary gained a criminal or police record during this period then do a careful review of the incident(s) to determine whether it will render the beneficiary inadmissible and whether a waiver will be required.

Be aware that the USCIS can issue a “split decision” in cases where the petition remains eligible but the beneficiary is inadmissible or has failed to maintain their status [2 USCIS-PM A.4]. In these instances, the USCIS will approve the petition, but they approve it as if it requested consular processing. The request to extend the beneficiary’s stay will be denied and the beneficiary will have to leave the country with the approved petition and get a new O-visa stamped in their passports at a consulate before returning to the USA. The consulates will adjudicate any necessary waivers. Advise the clients of the possibility of a split decision if there are any indicators of inadmissibility or violations of their nonimmigrant status.

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Immigration Lawyers Toolbox Magazine Luckily there is no prohibition against dual intent for O-1 status so pending green card applications do not negate the O-1 beneficiary’s “maintenance of nonimmigrant status.” In fact, O-1 clients should keep extending their O-1 status while their green card processes are processing.

Although clients may complain about the added expense, the underlying nonimmigrant status can provide a safety net in case the green card process experiences issues. Advise your clients on how to travel in this scenario. The client should abstain from leaving the USA while their O-1 extension is pending unless they have an advanced parole card from their green card process. If the client does have an advance parole

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card from their green card process then they should only reenter the country using the advance parole card. Sometimes clients in this situation inadvertently use their almost-expired O-1 visa when reentering the country. By doing so the client has likely abandoned his/her pending adjustment of status and/or O-1 extension of stay petition. The O-1 extension petition will likely be treated as a “split decision” and the client will have to depart the USA again to get the new O-1 visa stamped in their passport.

Keep these tips in mind so you can prepare your clients’ extension applications with the strongest posture possible and keep them fully advised about the process.

About the Author: Taymoor Pilehvar (@PilehvarLaw) is an immigration lawyer and a published academic author who serves on the AILA National Board of Publications. He is an alumnus advisor to the Center for International Business and Human Rights at Oklahoma University.

His practice is based out of South Florida and serves a global client base in the areas of business and family immigration as well as federal litigation.

Immigration Lawyers Toolbox Magazine

212(D)(3) NONIMMIGRANT WAIVER FOR YOUR O-1 CLIENTS: What Do You Have to Lose?

by BEATA LEJA, Esq.

Beata Leja, Esq.

BLeja@mmhpc.com

A

lthough uncommon, some O-1 clients are inadmissible to the United States for a variety of reasons and therefore unable to pursue their field of extraordinary ability in the country until the ground of inadmissibility is waived. For example, a client may have been brought to the United States without inspection as a child, but is now willing to consular process their O-1 with a waiver. In another example, a fashion designer client was issued an expedited removal order by CBP after they previously overstayed their prior visa. In instances where the O-1 client is inadmissible to the United States, it is worth considering a 212(d)(3) nonimmigrant waiver. Unlike the I-601A and I-601 waivers for immigrants, the 212(d)(3) waiver is temporary, does not require having any qualifying relatives, and waives nearly every ground of inadmissibility, with few exceptions.

What Grounds of Inadmissibility Can be Waived?

INA 212(d)(3) states that a person applying for a nonimmigrant visa may apply for a waiver of various grounds of inadmissibility and be admitted “temporarily despite his inadmissibility.”

The nonimmigrant waiver is incredibly generous and can waive most grounds of inadmissibility, including: • Fraud and/or misrepresentation (even if no qualifying relative);

• 3-year, 10-year, and permanent bars for unlawful presence (even if no qualifying relative); • Prior order of removal expedited removal;

• False claim to U.S. citizenship;

• CIMTs, aggravated felonies, drug convictions and other criminal grounds; • Prostitution; • Smuggling;

• Health related bars; 78

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or

• And more.

Special Edition 2021 What Cannot Be Waived?

The only grounds of inadmissibility that cannot be waived pursuant to INA 212(d)(3) are: • Security-related grounds, such as espionage and sabotage (INA section 212(a)(3)(A)(i)(I) & (II), (3)(A)(ii), (3)(A)(iii));

• Foreign policy considerations (INA section (3)(C)); • Participation in Nazi persecutions (INA section 3(E)(i)); or

• Participation in genocide (INA section 3(E) (ii)).

Requirements

The criteria that applicants must meet for a 212(d)(3) waiver are not defined by statute. In Matter of Hranka, the Board of Immigration Appeals (BIA) listed three factors that must be considered in deciding whether to grant or deny the waiver.

They are: 1. The risk of harm to society if the applicant is admitted to the U.S. 2. The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.

3. The importance of the applicant’s reasons for seeking to enter the U.S.

The Foreign Affairs Manual (FAM) at 9 FAM 305.4-3(C) adds the following other factors to be considered:

4. Whether there is a single, isolated incident or pattern of misconduct; and

5. Evidence of reformation or rehabilitation.

The BIA elaborated that the applicant’s reason for wishing to enter the U.S. need not be “compelling.” In fact, both the regulations and the FAM state that “while the exercise of discretion and good judgment is essential, generally, consular officers may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” 22 CFR 40.301; 9 Foreign Affairs Manual 40.301 N3. The FAM further adds that “eligibility for a waiver is not conditioned on having a qualifying family relationship, or the passage of a specific amount of time, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases.” Id.

In practice, consular officers weigh a variety of factors and use a totality of the circumstances approach when considering waivers, including the applicant’s good moral character, their employment history and military service, their familial and business ties to the U.S., as well as evidence of their remorse and rehabilitation. In the context of an O-1 visa applicant, the stronger the individual’s extraordinary ability, the more likely that their prospective contributions to the U.S. will be weighed in favor of granting the waiver.

Procedure

212(d)(3) waivers are adjudicated by consular officers or by the CBP Admissibility Review Office (ARO) located in Washington D.C.

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Immigration Lawyers Toolbox Magazine Waivers Filed at the U.S. Consulate Most foreign nationals will submit their waiver in conjunction with a visa application at a U.S. Consulate abroad. The consular officer will first review the O-1 visa application to ensure that the applicant is otherwise eligible and has the requisite nonimmigrant intent, and then make a finding that the applicant in inadmissible.

Then, assuming the ground of inadmissibility is one that can be waived under INA 212(d)(3), the officer may invite the applicant to submit a waiver either the same day or after the interview. The consular officer may then make a final determination on the waiver, or may in some instances need to refer it to the ARO for final review. As of May 6, 2019, consular officers must refer 212(d)(3) waivers to ARO when they involve the following considerations: • Foreign relations: Where the refusal of the visa would become a bilateral irritant or be raised by a foreign government with a highranking U.S. government official.

• National security: Where the visa applicant’s admission to the U.S. would advance a U.S. national security interest.

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• Law enforcement: Where the visa applicant’s admission to the U.S. would advance an important U.S. law enforcement objective.

• Significant public interest: Where the visa applicant’s admission to the U.S. would advance a significant U.S. public interest.

• Urgent humanitarian or medical reasons: Where the visa applicant’s admission is warranted due to urgent humanitarian or medical reasons.

There is no form or filing fee for 212(d)(3) waivers submitted at a U.S. Consulate. The package usually only contains a cover letter or brief, along with evidence of the factors outlined above.

Waivers Filed at the U.S. Port of Entry

Visa-exempt Canadian citizens can file their 212(d)(3) waivers directly with CBP at a U.S. port of entry by submitting a Form I-192 with a fee (presently $930). CBP then forwards the request to the ARO for final adjudication.

Unfortunately, 212(d)(3) waivers cannot be filed while in the U.S. in anticipation of travel abroad.

Validity If granted, the 212(d)(3) waiver may be valid for up to 5 years, but is sometimes granted for periods of 6 or 12 months in line with purpose of the trip or the validity of the nonimmigrant visa. Beginning in January 2017, the ARO indicated that it will generally approve 212(d) (3) waivers for 5 years, with the exception of crewmembers, who will typically receive them only for 2 years. O-1 visa applicants are more likely to receive a longer 5-year waiver to allow for multiple entries during their O-1 visa validity.

The waiver is valid for up 5 years or up to the visa expiration date, whichever is earlier. Once the visa expires, the person normally has to file for a waiver renewal (along with appropriate visa) to re-enter the U.S. as a nonimmigrant.

Special Edition 2021 It is important to note that the waiver is not transferable to a new visa or in the context of a change of status. In all cases where the individual seeks a new visa, whether because the prior visa expired or where the individual now seeks a different visa category, the waiver must again be resubmitted and readjudicated.

Further, an approved 212(d) (3) waiver has no impact on an individual’s eligibility for an I-601 or I-601A immigrant waiver.

Meaning, if the O-1 client is later seeking to adjust their status or apply for an immigrant visa, for example on the basis of an approved EB-1A I-140, they will need to meet the requirements for the immigrant waiver separately.

Conclusion Although it is discretionary and adjudicated inconsistently, the 212(d)(3) waiver should always be considered in cases involving inadmissible O-1 clients, given the generous nature of the waiver and the often-compelling U.S. interest involved in O-1 cases. There is often nothing to lose and much to gain.

About the Author Beata Leja is a principal at the law firm of Minsky, McCormick & Hallagan, P.C. in Chicago, IL and helps manage the practice.

Beata’s has practiced both employment-based and familybased immigration law since 2007.

She also serves as a Board Member for the Young Center for Immigrant

Children’s Rights, a national organization that advocates for the rights and best interests of unaccompanied or separated immigrant children in removal proceedings. She immigrated to the U.S. from Poland when she was 8 years old and speaks Polish and

Spanish. She speaks and lectures frequently on various topics related to immigration law, but particularly enjoys educating clients and other immigration attorneys on employment-based immigration options for the undocumented and DACA beneficiaries.

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Immigration Lawyers Toolbox Magazine

O-1A VISA PROCESSING T

by BEN ARTERBURN, Former Consular Officer

he O-1 petition has been approved by USCIS, and all that remains is for your client to have their visa printed and pasted into their passport by the consular section abroad. The approved petition is prima facie evidence that your client qualifies for the visa class, so the consular officer should issue the visa without any issues, right?

Ben Arterburn

BArterburn@Argovisa.com

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Unfortunately it’s not so simple. The consular visa interview could still cause a problem for your client despite having an approved petition. In my experience as a former consular officer, I saw numerous O-1 applicants refused their visas because the consular officers were not satisfied that they qualified for the visa or overcame INA section 214(b).

The Foreign Affairs Manual (FAM) instructs consular officers to confirm that the facts of the petition are true, and it places the burden of establishing eligibility for the visa class on the applicant. It explicitly calls for the consular officers to use their linguistic and cultural knowledge to spot exaggerations and misrepresentations that the adjudicators at USCIS may have missed.

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“

There was even one visa chief I served under who seemed to have a personal vendetta against 0-1 applicants.

He ordered that all 0-1 cases be referred to him so he could measure them against his bar for “extraordinary,” which more often than not resulted in a refusal.

Consular officers also take very seriously the fact that they are the first U.S. government official to interact with the visa applicant. They are well aware that a skilled immigration attorney can make any client appear extraordinary on paper, and they are keen to put the applicant to the test. It’s a relatively rare visa class for them to adjudicate, and they will take full advantage of the FAM’s mandate to confirm the applicant’s visa eligibility.

There was even one visa chief I served under who seemed to have a personal vendetta against O-1 applicants. He ordered that all O-1 cases be referred to him so he could measure them against his bar for “extraordinary,” which more often than not resulted in a refusal.

If the evidence of your client’s extraordinary ability is primarily from foreign language sources in their home country, rather than from English language international sources, they should be prepared for more scrutiny than they

Special Edition 2021

“

You can help them avoid confusion by providing a concise cover letter that clearly walks them through the regulations using the language of the FAM rather than the INA, since that’s what they will be referencing. received from USCIS. Much of the consular officers’ “local expertise” is actually their ability to consult with their local staff in the consular section. The consular officers will ask the local staff to verify that the publications, awards, and honors are indeed prestigious in the home country. Including supporting documents in the host country’s language will help ensure that the local staff will be able to quickly understand the situation and can verify that the qualifications are legitimate. If you can make it easy for the local staff to verify and explain your client’s qualifications to the officer, you have made an ally at the consulate who can help your client’s visa get approved.

The consular officers will also make use of section 214(b) since it applies to the O-1 visa class. O-1 applicants are exempt from the

“

requirement that they maintain a residence abroad, and they may have dual intent, but consular officers can still apply 214(b) if they feel that the applicant will not use the visa appropriately or will not depart the U.S. They will use 214(b) in the same way that they do for all other applicable non-immigrant visa classes: if the facts of the case are too confusing, they will refuse it under 214(b).

The best way to avoid confusing the consular officer is to guide them step-by-step through the adjudication process. This is not a visa class that they see every day, and so most consular officers will need to look up the regulations in the FAM during the interview. You can help them avoid confusion by providing a concise cover letter that clearly walks them through the

regulations using the language of the FAM rather than the INA, since that’s what they will be referencing.

The cover letter should also state clearly which category of O-1 visa your client qualifies for and a summary of exactly how he or she qualifies for it. Despite the FAM not referencing the three types of documentation needed to qualify for O-1 (except for Nobel and Oscar winners), you should still include in the cover letter the specific pieces of evidence and which category they fall under. If you provide all this information to them upfront, you have given them a road map to issuance. An ideal cover letter can serve as fully formed fodder for them to fill into their notes justifying their issuance. You will have made their job easier. And when the consular officer’s job is easier, they approve more visas.

...consular officers can still apply 214(b) if they feel that the applicant will not use the visa appropriately or will not depart the U.S. ILT Magazine

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Immigration Lawyers Toolbox Magazine About the Author

Aside from the documentary evidence and cover letter, your client should be prepared for whatever questions they may be asked at their visa interview.

Even though they may not have been involved in preparing the documents that have been submitted on their behalf, the consular officer will grill them over every detail and expect them

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to know the answers. If they seem uncertain or are unfamiliar with the details of their own petition, the consular officer might think that the facts of the petition have been fabricated and refuse your client under 214(b). I can not overstate the importance of preparation for the visa interview. It can make or break an O-1 applicant’s chances.

Ben Arterburn is an executive at Argo Visa, a company founded by former consular officers who work with immigration attorneys to ensure their clients are wellprepared for their consular interviews. He served as a U.S. diplomat for 6 years, adjudicating over 60,000 visa applications in China and Colombia. Having worked in immigrant visas, nonimmigrant visas, and fraud prevention, he is an expert on all aspects of the visa interview process. Before leaving the State Department, Ben served as the press secretary and spokesperson for the U.S. Consulate in Shanghai, China. He is fluent in Mandarin Chinese and Spanish.

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Immigration Lawyers Toolbox Magazine

APA LAWSUITS CHALLENGING O-1 DENIALS:

1 Year later

Immigration

Brian Green, Esq.

practitioners who file petitions under the O-1 category for individuals with “extraordinary ability or achievement” may have noticed an uptick in badly written and badly reasoned Requests for Evidence (RFEs) and even denials from the U.S. Citizenship and Immigration Services (USCIS) over the past several years. Faced with a frustrating USCIS denial of an O-1 petition, counsel has the choice between three options: 1) refile the case and hope to get a different USCIS adjudicator, 2) file a Form I-290B, or 3) challenge the denial before a U.S. District Court. USCIS data and anecdotal evidence suggest that federal court is often the best choice.

BrianGreen@ GreenUSImmigration.com AAO Statistics on O-1 Appeals While statistics released by USCIS1 show that O-1 petitions are normally approved (at a rate of 88% in 2018), this same data shows that appeals of these denials overwhelming result in the USCIS decision being upheld.2 In Fiscal Year (FY) 2017, the USCIS Administrative Appeals Office (AAO) heard 31 appeals of O-1 denials and sustained (refused the appeal) in 30 cases and remanded one O-1 petition back to the USCIS service center for reconsideration. This resulted in an approximate refusal rate of 97% and a success rate for those filing appeals of around 3%.

by BRIAN GREEN, Esq.

For FY2018, the AAO heard 27 appeals of O-1 denials, refusing all 27 for an obvious 100% refusal rate. The AAO continued this trend in FY2019 (20 appeals refused, none sustained or remanded) and FY2020 (32 appeals refused, none sustained or remanded). In summary, over four (4) years, the AAO heard 109 appeals of denials of O-1 denials and agreed with USCIS in 108 of those appeals, for a refusal rate of over 99%.

USCIS does not publish data on the approval rate for O-1 petitions that are refiled after initially being denied. It is safe to assume that USCIS is aware of its prior decisions and will note that an I-129 petition was previously denied for the same beneficiary. While many refilling’s are likely successful, the subsequent approval of an I-129 petition does not erase the prior denial. Only an effective lawsuit can achieve that result.

One Year of O-1 Lawsuits Against USCIS

I have been privileged to work on eight lawsuits challenging O-1 denials during the past year. I brought these lawsuits, with co-counsel including David Telfer, Kelly Carr, and Michael Dunn, before the U.S.

1 https://www.uscis.gov/sites/default/files/document/data/AAO_Data_for_Publishing_Thru_ FY20.pdf

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2 See, “Learning O-pportunities: Strategies for O-1 Success, by Alexander Magalli”, available online at https://www.klaskolaw.com/temporary-visas/learning-o-pportunities-strategies-foro-1-success/.

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Special Edition 2021 District Courts for the Central District of California, Southern District of New York, and the District of Columbia. Seven of these cases challenged the denials of petitions seeking O-1B classification, and one challenged the denial of an O-1A petition.

These petitions were filed on behalf of individuals from diverse backgrounds including an actor, a lacrosse coach, a creative director, a tour manager, musicians, a music producer, and a creative branding and event designer.

Common Issues in O-1 Denials

The USCIS denials in these cases were often poorly written and poorly reasoned, including sections of text that were obviously taken from (or worse, left in from) a template. The USCIS adjudicators in these cases frequently overlooked or dismissed the petitioner’s evidence in the form of expert letters, publications, awards, and even data from unquestionable public sources.

The USCIS adjudicators instead offered their rationalizations for why the evidence was not “probative enough” to be considered, or how the evidence did not address their specific objections stated in their Request for Evidence. None of these actions are proper under USCIS policy as found in the adopted decision of Matter of Chawathe, 25

I&N Dec. 369 (AAO 2010), or in the USCIS Policy Manual3 at Volume 7, Part A, Chapter 10 (“Legal Analysis and Use of Discretion”).

Outcomes in U.S. District Court Cases

While I cannot share the precise outcomes of these cases, I can discuss with you the trends that I have found in the USCIS reactions to these lawsuits.

USCIS has incorrectly denied O-1 petitions, even for beneficiaries who were previously granted O-1 status based on the same types of evidence.

Once a USCIS decision is challenged in U.S. District Court, USCIS loses exclusive control over the process and the U.S. Department of Justice (DOJ) becomes involved either through a local U.S. Attorney’s Office, or through the DOJ’s Office of Immigration Litigation (OIL).

Either way, an attorney who has no personal connection to the agency that issued the decision reviews the lawsuit and likely discusses the issues with USCIS counsel. This often resulted in USCIS issuing a notice of reopening and then taking one of three actions: 1) issuing a much better written Request for Evidence, 2) issuing a strongly worded Notice of Intent to Deny (NOID), or 3) issuing an approval notice for the O-1 petition. While it is nice to receive an approval

3 https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-10

notice at the same time as a notice of reopening, the additional effort required in responding to a 2nd or even 3rd RFE was often rewarded with an O-1 approval notice. Best of all, when USCIS approves the reopened I-129 petition, the prior denial is replaced in its records.

Takeaways for O-1 Counsel

USCIS has denied greater numbers of petitions over the past few years and no attorney is guaranteed that all of their cases filed with USCIS will be approved. When advising clients about their appeal options, it is important to consider U.S. District Court litigation as an often much more effective way to get USCIS to reconsider an improper decision.

If you consider the statistics above and the outcomes shared online and through email lists every day, it is obvious that USCIS is most likely to reconsider its denials (including O-1 denials) when questioned before an independent federal court rather than through its preferred, internal appeal process.

About the Author

Brian S. Green is a solo practitioner in greater Denver, Colorado, who focuses on bringing U.S. District Court challenges to immigration and visa denials and delays, nationwide. Brian has practiced complex litigation and trial work since 2001, and immigration law full-time since 2007. Brian is admitted to practice before eighteen (18) U.S. District Courts around the U.S. Brian “cut his teeth” as a judicial law clerk, assistant public defender, and then as outside trial counsel for General Electric and General Motors Corp. He is a graduate of Washington & Jefferson College and Case Western Reserve University School of Law. ILT Magazine

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WHAT ARE THE KEY UK VISA ROUTES FOR GLOBAL TALENT?

by VANESSA GANGUIN, Esq.

There are some similarities to the US O-1 and EB-1A visas for talent, however, Global Talent does not cover sports or business figures. Those applicants will have to use the other routes detailed below.

U

Vanessa Ganguin, Esq.

Vanessa@VanessaGanguin.com

K immigration was curtailed somewhat after leaving the European Union, which ended free movement across Europe, at the same time as the eruption of a global pandemic. So it is unsurprising that the UK government has been keen to stress its new immigration system will, as the Prime Minister promised: “welcome the best and brightest from around the world.”

The new flagship immigration program is the Global Talent visa, replacing the similar but more limited Tier 1 (Exceptional Talent) visa. This category is the greatest accolade our immigration system can bestow on those who excel in their fields.

There are no caps on Global Talent visas, and this prestigious route offers a path to citizenship without any need for a job offer for those at the top of their game.

For those that do not meet the exceptionally high bar for Global Talent visa, Sponsorship is available for other skilled immigrants that have an offer of employment or engagement from a UK entity with a Creative, Sports or Skilled Worker sponsor licence.

Global Talent Visa

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The Global Talent visa is a useful immigration path for people recognised in academia or research, arts and culture or digital technology to work in those fields in the UK without having to be sponsored by an employer or having a job offer.

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Global Talent visas are a route to permanent residence (after five years for those showing exceptional promise, three for exceptional talent) and people can generally apply for citizenship a year after they gain indefinite leave to remain.

Applicants must be over 18 and show either demonstrable talent in their field, or promise, as evidenced by endorsement by recognised bodies, or winning awards of global note. An application, unless you are lucky enough to have won one of the honours on a small list of ‘prestigious prizes’ (such as an Academy Award for a leading role, or a Turing Award or Nobel prize in science), involves applying to one of the recognised endorsing bodies, as well as a subsequent application for entry clearance or permission to stay.

Endorsements can take up to eight weeks although it is usually faster. Visa applications can also be made for partners and children under the scheme and there are more costly fast track options for the visa decision.

Special Edition 2021 Those applying for endorsement in the fields of science, engineering, medicine, the social sciences or the humanities, or for other academic and research roles, will have their applications referred to the British Academy, Royal Academy of Engineering, Royal Society or UK Research and Innovation (UKRI) which will make an endorsement decision based on the evidence you provide.

For recognition by one of the arts and culture endorsing bodies, Global Talent applicants must demonstrate to Arts Council England or one of the bodies listed below acting on their behalf their work in combined arts, dance, fashion design, literature, music, theatre or visual arts. PACT, acting on behalf of Arts Council England, can endorse applications in the film, television, animation, post production and visual effects industries, although individuals who work in the film, television, animation, post production and visual effects industries will need to demonstrate ‘exceptional talent’ as PACT does not endorse ‘exceptional promise’ applications.

This year, the Government made Global Talent visas possible without endorsement for those with a prestigious prize and we expect more developments to make it easier for talented individuals to come to the UK, whether with Global Talent visa or one of the other alternatives below. The full list of Home Office approved endorsing bodies and their criteria can be found in the links below, as well as the list of prestigious prizes which exempt applicants from having to be endorsed.

Permitted Paid Engagement Visa

Visitor visa Non-visa nationals (which includes US nationals) can apply for permission to enter the UK in this category at the port of entry. This category allows people to undertake typical tourist activities as well as generic business activities that are not considered to be “work”, such as attending meetings and conferences.

Certain sectors are also allowed to undertake additional activities. For example, an artist, entertainer or musician can give performances, take part in promotional activities, or take part in a film crew on a location shoot, while a sports person can take part in a sports tournament, take part in promotional activities, or take part in trials (but not in front of a paying audience) or short periods of training, as long as they are not paid by a UK sporting body. Sportspersons can also join an amateur team or club but only if they are an amateur in that sport – they cannot do so as a professional, for which they need a sponsored visa. Creative and sports visitors can also be accompanied by personal or technical entourage in some circumstances.

Visitors cannot normally be paid in the UK, but in some limited circumstances, visitors can come to the UK for permitted paid engagements.

These are visas for talent coming to the UK for up to a month with an engagement working for a UK client without having to be sponsored.

People can be invited to the UK with a Permitted Paid Engagement visa for reasons including taking part in sporting, arts, and entertainment activities; fashion modelling; to provide legal advocacy; to attend work meetings or deliver oneoff lectures at higher education institutions. While in the UK, they are not allowed to extend or switch to another visa, nor to carry out paid work outside their main area of expertise or visa conditions.

As with the visitor category, non-visa nationals can apply for permission to enter the UK in this category at the port of entry.

This includes any accompanying entourage too.

Anyone staying for longer engagements should consider the Global Talent visa or the categories below.

T2 Sportsperson

This route is for elite sportspersons or qualified coaches established internationally at the highest level and making a significant contribution to the development of their sport at the highest level in the UK. It is a sponsored route so the employer needs to have the relevant sponsor licence, for which they must be endorsed by the UK’s governing body for the sport. The sportsperson or coach must also be endorsed by the governing body in the UK.

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Immigration Lawyers Toolbox Magazine T5 (Temporary Worker)

Skilled Worker Visa

The Skilled Worker visa is a key sponsored route open to people with a huge range of different professions (from chief executives to theatrical producers to opticians) – but not sportspersons who have to be sponsored under the T2 sponsor licence mentioned above. In January it replaced the Tier 2 (General) category which by last year had become the most popular work visa application for the UK, despite the global pandemic and is a key plank of the UK Government’s new Points Based System.

There is no need for sponsoring employers to carry out a resident labour market test anymore, though there must be a genuine vacancy for a suitably skilled role.

The job must meet specific salary thresholds, though these can be lower if applicants hold higher educational qualifications or are fulfilling shortage occupations (as varied as choreographers, nurses, web developers, vets, architects, artists or pharmacists) or many educational and health roles.

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The T5 (Temporary Worker) category offers a number of options for those working temporarily in the UK, such as creatives or sportspersons, for example.

Temporary in this case means up to 12 months, renewable by a further 12 months (for creatives working for the same employer but not sportspersons). This is a sponsored route so employers would need to have a T5 sponsor licence.

Dependant partners and children can apply for a visa too.

The T5 route also covers youth mobility from certain countries – though only up to two years and there are caps for each country.

Innovator Visa

Innovator visas are a little-used route for experienced talent from business backgrounds who are seeking to establish a venture in the UK. This path replaced the Tier 1 (Entrepreneur) route in 2019, one that was more widely used but perceived by the Home Office as open to abuse.

Innovator visa requirements are more onerous as they require an innovative, viable and scalable business idea which is supported by a recognised endorsing body and applicants must generally have funding to invest in the business.

Useful Links

Immigration Rules for the paths to a Global Talent visa

Designated endorsing bodies to assess Global Talent visa applications: • The Royal Society – for natural and medical science applications • The Royal Academy of Engineering – for engineering applications • The British Academy – for humanities and social science applications • Tech Nation – for digital technology applications • UK Research and Innovation – for science and innovation applications • Arts Council – for literature, visual, performing and combined arts • Producers› Alliance for Film and Television – for film and TV • British Fashion Council – for fashion designers • Royal Institute of British Architects- for architects

List of ‘prestigious prizes’ that mean applicants do not need endorsement.

About the Author

With over 25 years’ specialist experience in UK immigration, Vanessa Ganguin’s immigration advice has spanned high court appeals to multinational takeovers.

Vanessa co-founded boutique USUK immigration law firm Ganguin Samartin in 2015, before founding UK immigration specialists Vanessa Ganguin Immigration Law last year. As Managing Partner, Vanessa continues to advise a wealth of clients from the US still, from entertainers and artists to start-ups and big brands.

Immigration Lawyers Toolbox Magazine

CANADIAN WORK PERMIT OPTIONS FOR PERFORMING ARTS

by DANIEL LEE, Esq.

Introduction

Daniel Lee

DALee@Fasken.com

In the United States, there is an O-1 visa category for individuals with extraordinary ability or achievement. This is a non-immigrant visa category, which is a temporary visa, for certain individuals who possesses extraordinary ability.

This may be used by foreign nationals in the performing arts industry to work in the United States on a temporary basis when they have job offers from qualified employers in the United States. This paper will provide a general overview of the equivalent Canadian work permit category for professionals in the performing arts industry in Canada, which is a CAD $245.7 million industry in 2019.

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In Canada, whether or not a work permit is required depends on a number of factors, including the nature of the work to be performed and how the production is funded. This paper will provide a general overview of the LMIA exemption code C23 work permit category for performing arts, and the work without a work permit category, pursuant to section 186(g) of the Immigration and Refugee Protection Regulations.

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a) LMIA Exemption Code C23 Work Permit Category for Performing Arts

The Government of Canada recognizes that the entry of foreign nationals working in dance, opera, orchestra or live theatre contributes to competitive advantages and reciprocal benefits for Canadians.

Accordingly, professionals in the performing arts industry, including key creative personnel and talent associated with Canadian, non-profit performing arts companies and organizations in the orchestral music, opera, live theatre and dance disciplines may be eligible to apply for a work permit under LMIA exemption code C23 for performing arts pursuant to the International Mobility Program. This means a labour market impact assessment is not required to test the labour market to ascertain whether there are any willing, qualified and available Canadian citizens or permanent residents who meet the requirements for the position.

Special Edition 2021 The eligibility requirements for the LMIA exemption code C23 work permit category for performing arts are summarized below: 1. An offer of employment submitted by the Canadian employer that confirms the applicant’s job offer is in the dance, opera, orchestra or live theatre discipline of the arts. Further, the Canadian employer must be a current recipient of core or composite funding from the Canada Council for the Arts or of financial support via parliamentary appropriation, such as the National Arts Centre;

2. A letter submitted by the applicant that has been provided by the applicable Canadian performing arts representative or service organization and that proves reciprocal international opportunities exist for Canadian citizens or permanent residents in that particular discipline; and

3.

The applicant is not inadmissible to Canada.

This includes the applicant does not have any criminal records, including driving under the influence of alcohol or other drugs.

The applicant may submit the work permit application at the port of entry (i.e. airport or land border) and the immigration officer would adjudicate the work permit application at the port of entry if the applicant is from a temporary resident visa exempt country, such as the United States, United Kingdom, Australia, Germany, France, Spain etc. If the applicant is not from a temporary resident visa exempt country, then the work permit application must be submitted to a visa office at the country where the applicant is currently legally residing. The application processing time for the work permit depends on the current processing time of the responsible visa office.

The work permit is tied to the Canadian employer. This means the

foreign national can only work for the Canadian employer specified on the work permit. Accordingly, if the foreign national wants flexibility in working for different employers in Canada, then the foreign national may have options to immigrate to Canada after completing one year of full time and paid employment in Canada in a skilled occupation and passing the language exam.

A common pathway for foreign nationals to immigrate to Canada is through the Canadian Experience Class via Express Entry where the processing time could be as short as six months from the date of submitting a complete permanent resident application. Note that this is a points based system and, as such, only candidates with the highest Express Entry points may receive an invitation to apply for permanent residency.

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Immigration Lawyers Toolbox Magazine b) Section 186(g) of the Immigration and Refugee Protection Regulations – Work Without a Work Permit Category

Pursuant to section 186(g) of the Immigration and Refugee Protection Regulations, a foreign national may work in Canada without a work permit as a performing artist appearing alone or in a group in an artistic performance — other than a performance that is primarily for a film production or a television or radio broadcast — or as a member of the staff of such a performing artist or group who is integral to the artistic performance when the following two conditions are met:

(i) the foreign national is part of a foreign production or group, or is a guest artist in a Canadian production or group, performing a timelimited engagement. The timelimited engagement is usually interpreted as two weeks or less. When the engagement is longer than two weeks, then a work permit is usually required; and

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(ii) the foreign national is not in an employment relationship with the organization or business in Canada that is contracting for their services.

In general, a foreign performing artist would not be in an employment relationship if they were merely hired to perform a single performance or short series of performances.

Accordingly, contracts for short-term “gigs” usually do not create an employment relationship between an artist and the organization

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contracting for their service.

However, a longer-term contract, where the performer is expected to perform on a regular basis and usually in the same venue, would likely be considered as an employment relationship, and a work permit would be required.

Immigration, Refugees and Citizenship Canada confirmed the below types of activities meet the requirements of section 186(g) of the Immigration and Refugee Protection Regulations and, as such, is exempt from a work permit: • Foreign-based musical and theatrical individuals and groups and their essential crew;

• Street performers (buskers) and DJs;

• A foreign or traveling circus;

• Guest artists (not employed) within a Canadian performance group for a time-limited engagement; • Persons performing at a private event for a timelimited engagement, such as a wedding; • Air show performers;

• Artists working at or attending a showcase or workshop, which may include competing, judging competitors, demonstrating their skill, and holding a class related to the showcase or workshop, and visual artists creating or displaying their own work (normally no more than five days); and • Guest speakers making guest appearances on Canadian TV and radio broadcasts.

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The above list is not a complete list of the types of activities that meet the requirements of section 186(g) of the Immigration and Refugee Protection Regulations, and the listed activities are subject to change without notice. Although the foreign national may be exempt from a work permit for their activities in Canada they still need to advise the border officer upon entry to Canada at the port of entry that the foreign national seeks entry into Canada under section 186(g) of the Immigration and Refugee Protection Regulations and include a letter of invitation from the Canadian organization or business.

The border officer will assess whether or not the foreign national is qualified to enter Canada under the above-mentioned provision.

Conclusion The performing arts industry in North America is interconnected and professionals in the performing arts industry are required to work in both sides of the borders in short notice. The Government of Canada recognizes that the entry of foreign nationals working in dance, opera, orchestra or live theatre contributes to competitive advantages and reciprocal benefits for Canadians. Accordingly, there are different work permit and work permit exemption categories for foreign nationals in the performing arts industry to work in Canada on a temporary basis. Foreign nationals who wants to stay in Canada on a permanent basis have pathways to immigrate to Canada as permanent residents.

About the Author Daniel Lee is a Canadian immigration lawyer at Fasken’s Vancouver, BC office. His practice focuses on corporate immigration law and employer immigration compliance. His practice is primarily focused on corporate immigration, including facilitating global mobility for employees and facilitating their permanent residence in Canada.

Daniel also works closely with employers in developing workplace policies to ensure their workplaces are in compliance with Canadian immigration laws and policies.

During the COVID-19 pandemic, Daniel advises his clients on the frequent changes in immigration laws, including the Quarantine Act and the travel exemptions.

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© Immigration Lawyers Toolbox® All Rights Reserved Disclaimer: None of the information provided here is intended as individual legal guidance.The laws change frequently and some of the information may become outdated. Please consult with an attorney in private to discuss an individual case.

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